Nigerian Communications Commission V. Motophone Limited & Anr. (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal from the final decision of the Federal High Court Abuja presided over by Honourable Justice S. J. Adah delivered on 8th July, 2005 by which the Lower Court awarded the sum of $10 million (Ten million dollars) against the Appellant for offering to refund to the 1st Respondent its licence fees.

The Appellant also raised objections against the suit and the claims (by way of a Notice of Preliminary Objection dated 15th October, 2005 as follows:-

1. Statute bar by virtue of the Public Officers Protection Act;
2. Lack of cause of action or reasonable cause of action
3. Lack of jurisdiction and
4. Abuse of Court process,

The Lower court dismissed these objections. It is against the dismissal of the preliminary objection, the findings and award of general damages that the Appellant has appealed to the Court of Appeal on a six ground Notice of Appeal dated 8th August, 2005.

The Grounds of Appeal shall hereunder be stated without their particulars as follows:-

GROUND ONE:

The learned trial Judge erred in law in overruling the Appellant’s Preliminary Objection.

GROUND TWO:

The learned trial Judge erred in law and on the facts when he awarded damages in the sum of US $10 million as general damages.

GROUND THREE:

The learned trial Judge erred in law and on the facts when he awarded damages in the sum of US$10 million as general damages.

GROUND FOUR:

The learned trial Judge erred in law in holding that the Appellant was in breach of the licence.

GROUND FIVE:

The learned trial Judge erred in law and on the facts when he held that the Appellant should have given the Respondent another opportunity of getting another frequency.

GROUND SIX:

The judgment is against the weight of evidence.

FACTS BRIEFLY STATED:

The 1st Respondent applied for and was awarded two Communications Licenses to wit, the Private Network License and the Mobil Cellular License.

The award of the licenses were CONDITONAL which were not only preconditions but continuing CONDITIONS. This meant that even if the licence conditions were initially met, failure or breakdown of any of the conditions would invalidate the licence. It would not even require withdrawal or revocation of the licence for the licence to cease to have effect.

The 1st Respondent did not meet some of the conditions particularly the requirement to start operation within 6 months of the approval or award of the Licenses and also interconnection with NITEL. It was contended that one other fundamental condition which was partially met and then lost was the condition of frequency allocation by the Federal Ministry of communications or the 2nd Respondent. The 1st Respondent lost the frequency by which it could offer services as a communications company, and without frequency allocation, the 1st Respondent would not be able to offer services.

It was on account of the withdrawal of the frequencies by the 2nd Respondent that the Appellant offered to graciously refund the 1st Respondent its licence fees. There was no letter from the Appellant revoking the licence nor was there any revocation or hint of revocation of the licenses by the Appellant. In its Ruling delivered along with the Judgment, the Lower Court dismissed the objections of the Appellant.

In the judgment the court below found that the 2nd Respondent properly withdrew the frequency allocated to the 1st Respondent and was not liable in damages. The learned trial judge was of the opinion that the appellant should have given the 1stRespondent time to see if it could secure another frequency even though this was not the 1st Respondent’s argument. The 1st Respondent’s case was that its Licenses were revoked and that it incurred losses.

The Lower Court also held that Appellant did not prove its entitlement to damages against the Appellant and further that the evidence offered by the 1st Resplendent did not prove damages suffered.

The Lower court then proceeded to grant to the 1st Respondent damages in the sum of N93,651,950 (Ninety-three Million, Six Hundred and fifty-one naira, Nine Hundred and fifty naira) and US $10 million.

On the 28th of April 2009 when this appeal was heard, Mr. Dodo SAN on behalf of the Appellant adopted their Amended Appellant’s Brief filed on 26/3/07 and deemed filed on 28/4/09 and a Reply Brief. Mr. Dodo also adopted their Amended Brief as Cross-Respondent which was filed on 26/3/07. He urged this Court to allow the appeal and dismiss the Cross-appeal.

Mr. Candide – Johnson for the 1st Respondent adopted their Brief of 31/7/06 and prayed the Court to dismiss the appeal. He also adopted their Brief as Cross-Appellant which was filed on 15/11/05.

In response, learned counsel for the 2nd Respondent adopted their Brief filed on 27/1/09 and prayed the Court to dismiss the appeal while she urged the court to strike out the Cross-appeal.

The matter of the Cross-appeal shall be dealt with later. For now I shall state the issues which Appellant formulated for determination which are thus:-

(a) Whether or not the Honourable trial Judge was right in overruling the Appellant’s Preliminary Objection.

(b) Whether or not the Lower Court could validly award general damages not based on computation and not specifically claimed.

(c) Whether or not the Lower Court was right to have awarded damages after holding that no proof was proffered in Court.

(d) Whether or not the Appellant was guilty of any breach of wrong doing in regard to licenses issued to the 1st Respondent.

(e) Whether or not there was evidence to support the conclusions of the learned trial Judge. The 1st Respondent did not frame any issues nor did they seek to adopt the issues as raised by the Appellant rather they set about countering the submissions made by the Appellant.

The 2nd Respondent set about their arguments in a way really strange to brief writing and has set this Court on a journey of discovery to see what her submissions are and the correlation to the arguments of the Appellant.

It is for that reason that Mr. Dodo for the appellant had in reply to points of law urged that the Brief of the 2nd Respondent be declared incompetent as she did not even adopt the issues raised by the Appellant.

On this issue of the Brief of the 2nd Respondent it has been held again and again that a Brief cannot be thrown away on account of being inelegant since the Court such as this one should sift the chaff from the grain which is what I shall do in the course of this judgment. I must however not fail to deprecate this course undertaken by Dr. Okaisabor who set out a new way without taking into consideration the added task given to this Court to wade through this confused brief. This is in keeping with the principle that a party to a litigation cannot be shut out and the court inhibited from entertaining a matter on technical ground such as counsel’s inability to properly present the case of his client. See Nuhu v. Ogele (2004) FWLR 362; Galadima v. Tambai (2000) FWLR (pt. 14) 2369; Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) 582.

The fact that a brief or argument is poorly written will not discharge an appellate court from its duty of doing substantial justice to the parties appearing before it and satisfying the principle of fair hearing. A bad, faulty or inelegant brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such brief as no brief. The court cannot close its eyes to the fact of the existence of such brief. Gurara Securities & Finance ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29 at 42 – 43; Engineering Enterprises v. A.G. Kaduna State (1987) 2 NWLR (Pt. 57) 381 at 392; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 663 – 664; Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172 at 184; Incar Nig. Plc. v. Bolet Enterprises Nig. Ltd. (1996) 6 NWLR (Pt. 454) 318; Obiora v. Osele (1989) 1 NWLR (Pt. 92) 279.

ISSUE NO.1,

Whether or not the Honourable Judge was right in overruling the Appellant’s Preliminary Objection.

Learned Counsel for the Appellant stated that the Appellant’s letter which is the complaint against the Appellant was written on the 24th October, 2000 and the action was filed on the 14th May, 2004 (a period of 3 years and seven months from the date the cause of action arose). That in overruling the objection on this ground the trial judge held that the Public Officer’s Protection Act would only apply because the cause of action was contractual, not statutory.

Learned counsel said that the position of the Lower Court was wrong in that in the instant case the Nigerian Communications Commission (1st Respondent) was acting in its statutory capacity as a regulator and so it was not a commercial contract but a statutory contract, and the Commission’s role is regulatory not commercial and so the action was statute barred.

Mr. Dodo SAN further stated that there was a lack of cause of action or reasonable cause of action and the question is whether a party can maintain an action which is statute – barred. He cited Egbe v. Adefarasin (1987) All NLR1. That the 151: Respondent filed a case in Lagos Suit No. FHC/L/CS/1185/2000 in Lagos. The case even went to the Supreme Court on interlocutory issues before the main case was withdrawn at the Lagos Federal High Court. That where a plaintiff has taken advantage in the previous case or has allowed some issues to be trashed out before it was withdrawn, he cannot be allowed to file a second or subsequent case. That it is an abuse of Court process to withdraw a suit and file another in those circumstances. He cited Olawore v. Olanrewaju (1998) 1 NWLR (Pt. 534) 436 at 455 A-E; IGP v. Aigbitemolen (1999) 13 NWLR (Pt. 635) 443 at 455 to 456; The Vessel “St ROWLAND v. Osinloye (1997) 4 NWLR (Pt. 500) 387 at 409 – 410, 412, 417.

Mr. Candide – Johnson learned counsel for the 1st Respondent said the Public Officers’ Protection Act only protects an act “done in pursuance or execution, or intended execution of any Act or Law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such Act, Law, duty or authority”, That in order to fall within the limitation, NCC must allege and prove that they are defendants in a suit concerning an act done in execution etc of any act, law or public duties. In this case, the acts complained of in the action were not alleged to be or in fact done in pursuance, execution or intended execution of any law. If the acts complained of are not in pursuance, execution or intended execution of any law but an exercise undertaken With some unofficial (such as commercial profit) or criminal object such object or any other factor would remove the protection of limitation from a Defendant.

Learned counsel for 1st Respondent said the facts of the present case fall squarely outside the principle established by the main case relied upon by NCC. He referred to Alhaji Aliyu Ibrahim v. Judicial Service committee (1998) 14 NWLR (Pt. 584) 1.

The Supreme Court had held in the case of Federal Government of Nigeria v. Zebra. Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 that this limitation did not apply as defence to an unlawful revocation of a petroleum licence under the Petroleum Act. See also NPA v. Construzioni Generali Farswa Cogefar Spa (1974) 1 All NLR 463.

He stated that the award of a licence by NCC also creates a contractual relationship between NCC and Motophone albeit one subject also to the provisions of the Nigerian Communications Act, 1992. That there is no distinction in law between a “statutory Contract” and a “Commercial Contract”. That NCC is completely responsible for the illegal action complained of since on the date of the relevant letters the Minister had no power to grant or revoke a frequency license and was a powerless third party. He cited Nigerian Communications Commission (Amendment) Decree 30 of 1998 which provided for the powers of the Minister under the Wireless Telegraphy Act were vested without further assurance in the NCC. He referred to Section 4 (20) which amended Section 30 of the NCC Act 1992; Wireless Telegraphy (Amendment) Act No. 31 of 1998. Learned counsel for 1st Respondent further contended that the NCC power in respect of the licenses that it had issued was outlined in Section 12 (2) of Decree No. 75, 1992. That there is no public interest in withdrawing a contractual licence from one person and giving it to another at a profit. That NCC did not either assert or attempt to establish any public duty or purpose in this capricious and whimsical withdrawal of a valid contractual license.

Dr. Okaisabor for the 2nd Respondent submitted that by the ruling of the trial court which exonerated the 2nd Respondent (Minister of Communications) of all blames in the contract In issue and dismissed the claims/case against the Minister which decisions were not appealed by either the Appellant or 1st Respondent/Cross – Appellant. Also that there was no leave from the Appellant or Cross – appellant to make the 2nd Respondent (Minister of communications) party to this Appeal.

She stated that the presence of a party to a suit against whom there is no claim, be it at the trial court or on appeal, affects the proper constitution of the matter for adjudication which is what happened here In bringing in the 2nd Respondent. That since this proper constitution of the appeal is a condition precedent to its competence for adjudication by the Appellate Court as in this case this Court has no jurisdiction to adjudicate on the incompetent appeal or cross appeal.

She also stated that suits and appeals are maintained against the parties the Plaintiff/Appellant has a reasonable cause of action which is absent here. She cited Alhaji Aminu Ibrahim v. Mr. Felix Osim (1988) 3 NWLR (Pt. 82) P.257 at 259 – 260.

In reply on points of law, the learned Senior Advocate stated that while Motophone (1st Respondent) is entitled to concede the fact that it has no sustainable claim against the Minister of communications, it cannot on its own volition insist that NCC should be responsible for the actions of the Minister since NCC is a distinct legal personality owing its existence to the Nigeria Communications Act 2003. He referred to Habib Nig. Bank Ltd. v. Benson Ochete (2000) 19 WRN 20.

That the entire submissions by Motophone (1st Respondent) will amount to setting up a different case at this stage which the Court cannot allow. He referred to Dahiru v. Kamale (2001) 11 NWLR (pt. 723) 224. For a clearer appreciation of what is in dispute I shall recast the ORIGINATING MOTION and contents in the Court below:-

ORIGINATING MQTION

Order 47, Rules 5 &. 6 Federal High Court (Civil Procedure) Rules 2000

TAKE NOTICE that pursuant to the Leave of this Honourable Court given on the 8th day of June, 2004 the Court will be moved on the 21st day of June, 2004 at 9 O’clock or so soon thereafter as Counsel can be heard on the applicants behalf for the following reliefs or any of them:

1. A DECLARATION that the letter MC/TD/2000/VOL.l dated 3rd October 2000 from the Minister of Communications to the Applicant purporting that the frequency assignment given to Applicant has “already expired” is (i) is a confiscation of the rights and property of the applicant and is illegal, unconstitutional, null and void; (ii) wrongful, invalid and ineffectual; (iii) substantively and procedurally ultra vires the powers of the respondents and is null and void; and (iv) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the respondent to make and is null and void.
2. A DECLARATION that the letter from Nigerian Applicants telecommunications licenses is (i) invalid and ineffectual; (ii) substantively and procedurally ultra vires the powers of the respondents and is null and void; (iii) is perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the Respondent to make and is null and void; and (iv) is a confiscation of the rights and properly of the applicant and is illegal, unconstitutional, null and void.
3. A DECLARATION that the denial and interference by the Respondents with the effect and operation of the applicants (i) Fixed Wireless PNL License in force from 1st June 1997 for a duration of Ten years from 1st June 1997 till 31st May 2007 and express provision for automatic renewal for a further period of ten years from 1st June 1997 to 31st May 2017; and (ii) Cellular Mobil License from 1st September 1997 for a duration of Fifteen years from 1st September 1997 to 31st August 2012 and express provision for automatic renewal for a further period of fifteen years from 1st September 2012 to 31st august 2027 issued by the 1st Respondent to the applicant and with the Frequency assignment granted to the applicant by the 2nd Respondent under Decree 75 of 1992 and Wireless Telegraphy Act Laws of the federation 1990 is a deliberate and the fact to confiscation of the Applicants rights and property which is ultra vires, unlawful and unconstitutional and which has injured the Applicant unlawfully and in breach of contract.
4. AN ORDER that the respondents indemnify or pay as DANAGES to the Applicant in respect of the following or such other sum or sums as may be found upon inquiry to be due: (i) for lost fees paid, (ii) costs thrown away, (iii) loss of use, (iv) loss of profit, (v) loss of opportunity and (vi) malicious injury to the Plaintiff’s business and undertaking all resulting directly from the Respondents decisions and actions complained of herein.

Particulars:

(i) Application, license and sundry Fees (US $891,923) – NGN93,651,950.

(ii) Payments made to Consultants, irrevocable Commitments with 3rd parties and recurrent Expenditure, rents and staff salaries (US $27,358,992) – NGN2,872,694,156.

(iii) Capital expenditure, Infrastructure, equipment and facilities (US $10,525,885 – NGN1,105,217.905.

(iv) Loss of Profit – US$2,854,092,970.

TOTAL US$ DAMAGES- US$2,892,869,770 N442,609,074,810.00 @ prevailing rate of =N =153.00 per US$ or current equivalent).

5. Further or other relief.
6. Costs.

AND TAKE NOTICE that on the hearing of this motion Applicant will use the affidavit of Alhaji Abubakar Ahmed sworn to herein on 23rd May 2004.

Dated the 14th day of June, 2004

(SIGNED)

——————~———————–

C.A. CANDIDE-JOHNSON ESQ. S.A.N.

The Verifying Affidavit deposed to by Alhaji Abubakar Ahmed would be quoted hereunder:-

VERIFYING AFFIDAVIT:

I, ALHAJI ABUBAKAR AHMED, Male, Nigerian citizen and chief Executive Officer of 27 Saka Tinubu Street, Victoria Island, Lagos make oath and say as follows:-

1. That I am employed as Chief Executive Officer by Motophone limited and I am authorised to depose to this affidavit by my employers from facts in my knowledge or from facts provided to me in the course of my employment of which I verily believe.”
2. That I verily believe the facts stated in the Application and Statement herein of Motophone Limited by virtue of my personal knowledge of same.
3. That attached hereto marked AA 1 is a bundle of documents including key documents identified in the statement in support hereof.
4. That attached hereto marked AA 2 is a report by KPMG international audit and signed by Bashorun J. K. Randle identifying and quantifying the financial losses incurred by the Applicant as a direct result of the breaches of the Respondents complained of herein.
5. That the Applicants have suffered severe and irreparable loss as a direct result of the capricious and illegal decisions and actions of the Respondents.
6. That in Suit No. FHC/L/CS/1185/2000 the Applicant commenced action against the Respondents and two others by Writ of summons and obtained an ex parte injunction against the acts complained of.
7. That an appeal by the respondents against the grant of the injunctions to the court of Appeal was refused on 9th January 2003, and accelerated hearing was ordered but the respondents appealed to the Supreme Court of Nigeria against the grant of interim injunction and have contrived thereafter to evade hearing the matter.
8. That the Applicant discontinued the said action on 1st June, 2004 in order to proceed by way of application for Judicial Review on advice of counsel.
9. That the actions of the Respondents and their deliberate refusal to obey orders of the Federal High Court granted in an earlier suit have irreversibly prejudiced the applicant, and the Applicant is entitled to damages. “STATEMENT OF APPLICANT IN SUPPORT OF APPLICATION FOR JUDICIAL REVIEW:

NAME OF APPLICANT:

The applicant is Motophone Limited a Nigerian registered company and at all material times a licensed Private Telecoms Operator of 21 Ologun Agbeje Street, Victoria Island, Lagos.

RELIEFS SOUGHT:

The Applicant seeks the following Declarations and Orders or any of them:

1. A DECLARATION that the letter MC/TD/2000/VOL.1 dated 3rd October 2000 from the Minister of Communications to the applicant purporting that the frequency assignment given to Applicant has “already expired” is (i) a confiscation of the rights and property of the Applicant and is illegal, unconstitutional, null and void; (ii) wrongful, invalid and ineffectual; (iii) substantively and procedurally ultra vires the powers of the Respondents and is null and void: and (iv) thereof beyond the powers of the Respondent to make and is null and void.
2. A DECLARATION that the letter from Nigerian communications commission to the applicant dated 24th October 2000 purporting to assert the implied revocation of the applicants telecommunications licenses is (i) invalid and ineffectual; (ii) substantively and procedurally ultra vires the powers of the Respondents and is null and void; (iii) perverse, arbitrary, capricious and unreasonable and by reason thereof beyond the powers of the Responded to make and is null and void; and (iv) a confiscation of the rights and property of the applicant and is illegal, unconstitutional, null and void.
3. A DECLARATION that the denial and interference by the Respondents with the effect and operation of the Applicants (i) Fixed Wireless PNL License in force from 1st June 1997 for a duration of Ten years from 1st June 1997 till 31st May 2007 and express provision for automatic renewal for a further period of ten years from 1st June 1997 to 31st May 2017; and (ii) Cellular Mobile License from 1st September 1997 for a duration of Fifteen years from 1st September 1997 to 31st August 2012 and express provision for automatic renewal for a further period of fifteen years from 1st September 2012 to 31st August 2027 issued by the 1st Respondent to the applicant and with the Frequency assignment granted to the Applicant by the 2nd Respondent under The Nigerian Communications Decree (No. 75) of 1992 (hereafter called ‘Decree 75″) and Wireless Telegraphy Act, Cap 469 Laws of the Federation 1990 is a deliberate and de facto confiscation of the applicants rights and property which is ultra vires, unlawful and unconstitutional and which has injured the Applicant unlawfully and in breach of contract.
4. AN ORDER that the respondents shall indemnify or pay as DAMAGES to the Applicant in respect of the following or such other sum or sums as may be found upon inquiry to be due: (i) for lost fees paid, (ii) costs thrown away, (iii) loss of use; (iv) loss of profit, (v) loss of opportunity and (vi) malicious injury to the applicants business and undertaking all resulting directly from the respondents decisions and actions complained of herein.

(v) Application, License and sundry Fees (US $891,923) – NGN 93,651,950.

(vi) Payments Made to Consultants, irrevocable Expenditure, rents and staff salaries (US$27,358,992) – NGN 2,872,694,156.

(vii) Capital expenditure, Infrastructure, Equipment and facilities (US $10,525,885) – NGN 1,105,217.905.

(viii) Loss of Profit – – US$2,854,092,970.

TOTAL U5 $ DAMAGES – – U5 $2,892,869,770.

(=N=442,609,074, 810.00 @ prevailing rate of =N= 153 per US$ or current equivalent rate).

5. Further or other relief.
6. Costs.

GROUNDS FOR RELIEF:

The Grounds for the relief are as follows:-

1. The Applicant is a limited Liability company registered under the laws of Nigeria on 22nd August 1990 and having an authorised share capital of N100,000,000. It was established to carry on communications business in particular cellular telecommunications systems (GSM) and is or was at all material times a licensed Private Telecommunications Operator within the meaning of Sections 4 and 10 to 12 of Decree No. 75.
2. The 1st Respondent (hereafter called “NCC”) is an agency of the Federal Government of Nigeria, the national regulatory body for telecommunications in Nigeria and is established with powers and responsibilities in relation thereto (at the material time) under Decree No. 75 and also with powers and responsibilities under the Wireless Telegraphy Act Cap 469 Laws of the federation of Nigeria (hereafter called “WTA”) and under amendments thereto.
3. The 2nd Respondent (hereafter called “The Minister”) is a constitutional agent/functionary of the Federal Government of Nigeria who is invested with powers and responsibility for overall government policy and measures in the telecommunications industry, their implementation, in particular for radio spectrum allocation in Nigeria and for coterminous and additional powers and responsibilities under Decree 75 and WAT and their succeeding enactments.
4. By letter from NCC to the Applicant with reference NCC/LIAP/99/VOL.l/014/97 dated 7thApril 1997 NCC Private Network Links (PNL) in Nigeria and by further letter from NCC to the Applicant with reference NN/LIAP/99/VOL.1/58/97 dated 15thMay 1997 NCC offered to grant to the Applicant a “National License to Provide and Operate a GSM Mobil Cellular Network Service in Nigeria”.
5. The above offers were made by NCC as National Telecommunications Industry Regulator under authority of the government of Nigeria, in exercise of its statutory powers under Decree 75 and WAT and were an execution of a formal and published National policy set by the Minister and the government of Nigeria.
6. By separate letters dated 10th April 1997 and 9th June 1997 the Applicant accepted the respective offers and the conditions therein.
7. In fulfillment of the terms of the said offers, the Applicant did between 14th April 1997 and 1st September 1997 pay to the Government of Nigeria the following sums: (i) in respect of Private Network links System licensing, N650,000.00 vide receipt No. 3670 dated 14th April 1997 and N13,650,000 vide receipt No. 3786 dated 9th June 1997; (ii) in respect of Mobil Cellular License, N1,300,000.00 vide receipt No. 3784 dated 9th June 1997 and N27,300,000.00 vide receipt No. 3875 dated 1st September 1997.
8. In due course NCC issued and delivered to the Applicant to acknowledge its fulfillment of all relevant terms and conditions two relevant license documents as follows: (i) Fixed Wireless PNL License in force from 1st June 1997 for a duration of Ten years from 1st June 1997 till 3rd May 2007 and express provision for automatic renewal for a further period of ten years from 1st June 1997 to 31st May 2017 subject to the terms therein and to Decree 75; (ii) Cellular Mobil License from 1st September 1997 to 31st August 2012 and express provision for automatic renewal for a further period of Fifteen years from 1st September 2012 to 31st August 2027 and subject to the terms therein and to Decree 75.
9. The said licenses were not only an exercise of statutory power by the Respondents but were also a binding contract according to the statute and the binding terms of the licenses themselves.
10. In reliance of the statutory rights thereby acquired and upon the representations and commitments made and implicit in the licence document and ………………… Applicant further and in addition to the terms contained in the license documents did at great expense comply with the following requirements dictated by NCC in its said capacity as National Telecommunications Industry Regulator as follows:

a) Commence operations within 6 months of grant of license:

Applicant procured the design of a complex telephony network by engagement of foreign telecommunications consultants of world class standard, incurred capital cost of purchase and importation of plant, machinery, apparatus and other facilities and infrastructure for an elaborate telephony network; and entered into various irrevocable contracts with international corporations for supply, installation and support of the said infrastructure, employment of staff and rent on sundry operational premises in excess of US$10,525,885 and these were notified to the Respondents vide letters and reports from Applicants to NCC dated 9th December 1998, to Minister dated 30th June 1999 and to the Minister by the international telecommunications giants Ericson and Motorola dated 24th November 1998, 25th June 1999 and 24th June 1999 respectively.

b) Maintain operational presence in six states spread over the six operating; zones approved by NCC within 12 months.

Applicants acquired, installed and made fully operational state of the art network equipment at Lagos, Abuja, Port Harcourt, Aba, Bonny, Onitsha and ordered and paid for counterpart equipment for Ibadan, Shagamu, Abeokuta, Ilorin, Warri, Benin, Maiduguri, Yola, Bauchi, los, Gusau, Sokoto, Minna, Kaduna, Zaria, Kano, Katsina and numerous other locations; also offices, residences purchased or leased in Lagos, Kaduna, Kano, Port Harcourt, Abuja and Warri purchased at the cost of US$27,358,992 (N2,872,694.156).

d) Compliance of equipment with NCC Type Approval:

By contract with Ericcson, Applicant designed, purchased, imported and installed for use base stations and base station controllers along with ancillary transmission equipment on advanced AEX technology which were type approved by NCC by letter dated 21st June 1999 in respect of which it paid to NCC ………………. total sum of N2,200,000,00 by Chartered Bank limited Bankers Cheque in said sum dated 28th June 1999 acknowledged by receipt No. 9273 of same date.

e) Frequency Assignment/Allocation for Cellular license from Minister:

Applicant made successive applications in writing between September, 1997 and Apri1 1999 to the Minister of allocation of frequencies for the duration of validity of its Cellular Mobil license which was approved in writing by the Minister by letter reference MC/TD/L.1/4229/VOL.1/169 dated 9th February 1999 which demanded payment of frequency assignment fees of N10,745,000 and VAT of N537,250.00 which two sums the applicants duly paid under cove of letter dated 10th February 1999 by Citibank managers cheques No.

MC/TD/L.1/GSM/4229/VOL.1/457,

MC/TD/L.1/4229/VOL/1/514 and

MC/TD/L.1/4229/VOL.1/36 dated April 1999 respectively identifying and breaking down relevant frequency and channels allocated.

e) Seek and obtain Cellular Numbering Allocation:

Applicants by letters dated 5th September 1997, 26th September 1997, 15th December 1997, 8th February 1999. 24th February 1999 and 19lh April 1999 supplied details of network indicator and signaling point codes and other details necessary to allocate numbering which was allocated by the Ministers letter MC/NNP/008/VOL.1 dated 27th April 1999 demanding payment of N32,655,000.00 which was paid by Applicant in full by FSB International Bank drafts No. 112858 and 119590 dated 28th April 1999 and 28th June 1999 sent under cover of applicants letters dated 28th April and 5th July 1999 respectively. The Minister acknowledged the payments by letter MC/NNP/008 VOL.1 dated 4th May 1999 allocating Nos. 9000000-9999999.

f) Negotiate and conclude Interconnectivity Agreement with Nigerian Telecommunications Plc.

By letter dated 4th March 1998 and by subsequent pleas and ……………….Applicants obtained agreement with NITEL for interconnection which agreement was executed on 13th January 2000.

11. By virtue of the said Decree 75 and other enabling law and by fulfillment of all relevant terms and conditions the Applicant became entitled to certain statutory and contractual rights and status prescribed under the said laws as well as to the legitimate expectation that same would not be altered or denied capriciously and the respondents were affected under the same by corresponding duties and obligations including those devolved statutory rights outlined in the license documents issued under the said Decree 75 and related Federal legislation.
12. In particular the applicants became entitled by operation of federal Law to hold and operate the said licenses and corresponding frequencies and numbering and other ancillary rights necessary for giving effect to the said licenses for their respective duration subject only to valid and lawful exercise by the respondents of powers prescribed and limited under the relevant Federal laws.
13. On 26th May 1999 the applicant commenced operations on the basis of its business and financial plan as sole licensee for GSM services in Nigeria.
14. The Respondents owed to the applicants a duty under the relevant laws not to act illegally, unfairly, capriciously, unreasonably or otherwise inconsistently with express or implied duties under relevant law and in particular not to invalidate or render the licenses ineffective or useless or to diminish them without due process prescribed under the said laws.
15. Sometime in October 1999 the Minister Published, purportedly on behalf of the Federal Government of Nigeria a National Policy on Telecommunications pursuant to which it unilaterally imposed obligation on licensees such as the Applicant to pay an additional license fees of US $100,000,000 in respect of which the Applicant acted to protect its massive investment by tendering a bank guarantee for the said sum at the cost to itself of US$1,000,000. However on the day that bids were to be officially presented NCC unilaterally and arbitrarily without giving reasons cancelled the process.
16. By letter MC/TD/2000/VOL.1 dated 3rd October 2000 the Minister purported without giving any reason, unreasonably and/or illegally and without any legal justification whatsoever that the ………..expired” and purported thereupon to withdraw or cancel the same.
17. Further to the Ministers letter NCC by its own letter dated 24th October 2000 purported unreasonably and/or illegally and without any legal justification whatsoever that the allocated frequency “has expired” and implied the revocation of the Applicants licenses by tendering a refund of the license fees paid in September 1997.
18. By the above letters and by subsequent actions following including the advertisement of conduct of an auction of frequencies previously allocated to Applicant under subsisting licenses and award of same to third parties (NITEL, Econet, Globalcorn and MTN) the Respondents illegally, arbitrarily, unreasonably capriciously and in breach of Decree 75 and other law have deprived Applicants of its accrued rights and have caused it loss.

The Respondents in the Court below, Nigerian Communications (NCC) and Minister of communication had in the Court below raised a Preliminary Objection contesting the competence of the Applicants suit on the grounds that the suit was incompetent by virtue of section 2(a) of the Public Officers’ Protection Act Cap 379 Laws of the federation of Nigeria 1990, the suit having been initiated more than three months after the action of the Public Officer (s) complained of that is cause of action arising in June 1997 and the action filed in June 2004. Other objections including the first stated above are as follows:-

1. This suit is statute barred on the face of the Originating Motion itself by virtue of the Public Officers Protection Act 1990.
2. No cause of action is disclosed on the face of the Originating Motion.
3. The Applicant ought not to have commenced this action by way of an Application for Judicial Review, and in so doing, has deprived this Honourable Court of jurisdiction.
4. On the face of the Originating Motion, this suit is an abuse of court process, being the second suit filed by the Applicant on the same issue and on the same set of facts after partial pronouncements by the Lagos Division of this Honourable Court (High Court) and the Court of Appeal in MOTO PHONE LIMITED vs. THE NIGERIAN COMMUNICATIONS COMMISSION & 3 ORS (Suit No. FHC/ABJ/CS/118S/2000).

Learned trial Judge ruling on this Objection stated inter alia:-

“It is therefore very clear and beyond controversy that the applicant has shown sufficient facts to back up her assertion that she had met all the conditions of the offer this transaction has matured up conclusively as a contract.

I am of the firm view that the transaction in the instant case is not just that of a statutory dispensation of right but contractual, from the processes filed in this case. There is no doubt anywhere about the fact that this case is a clear case of breach of contract. A case of breach of contract such as in the instant case is not affected or amenable to the affliction of the Public Officers Protection Act.

The next major leg of the objection in this case is that this suit ought not to have been commenced by judicial review ….. Under the Rules of this Court (Order 47 Rule 9 (5) Rules of Federal High Court 2000), this situation is not a serious matter…… This provision of the Rules of this Court empowers the Court to go on with this type of case that was commenced under judicial review instead of a Writ of summons. That let of the objection is also refused.

The third leg of objection complaining of no cause of action or a reasonable cause of action also cannot stand in the face of my earlier findings that this is a case of breach of contract.

I hold that there is a reasonable cause of action.

The final leg of objection is that of Abuse of process. The defence counsel hung this objection on the fact that the applicant had earlier filed this case in a Court and that an interlocutory appeal on the matter was pending at the Supreme Court and that it was withdrawn from court before this was filed before this Court. There is no evidence to show that this case had once been tried on merit as to create estoppel ………………

From the foregoing therefore I come to the conclusion that the objection has completely failed. I hold also that this case is competent and that this Court has jurisdiction to entertain it”.

Just like the court below I have gone through the processes before that Court and considered the materials alongside the findings and conclusion of the Federal High Court and I see no reason to disagree on any point with the learned trial judge’s findings and summation on the Preliminary Objection upon the grounds the Objection was raised.

The Public Officers Protection Act was not intended by the legislature to apply to contracts, and that is the situation here since the matters are contractual. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162 at 196 N.P.A. v. Construction Generali Far Sura Cogefar SPA (1974) All NLR (Pt. 2) 945.

Having agreed with the decision of the trial Judge on the Preliminary Objection, I affirm that decision overruling the Objection.

ISSUES 2, 3, &. 5:

Whether or not the Lower Court could validly award general damages not based on computation and not specifically claimed.

Whether or not the Lower Court was right to have awarded damages after holding that no proof was proffered in Court.

Whether or not there was evidence to support the conclusions of the learned trial Judge.

Mr. Dodo SAN said that 1st Respondent is actually claiming for fresh hearing on evidence with regard to damages knowing that the evidence led at the Lower court did not prove any damages. That the 1st Respondent’s case was based on a purported breach of contract which means the 1st Respondent knew that it had to prove the damages strictly and the Appellant is contending that Appellant did not breach any contract.

That if there was breach the damages have not been proved and so the learned trial judge ought to have dismissed the claims and so the judgment is not supported by evidence in respect of the damages awarded.

Mr. Candide – Johnson for 1st Respondent said NCC neither contradicted nor challenged the basis of the computation of Motophones carefully rationalized claim for damages. That the Lower court ought to have adhered to the fact that evidence in proceedings by way of Judicial Review is given by way of affidavit evidence which was not applied in this case. Also that the Lower court failed to impartially and reasonably consider that the report was made by the internationally reputable accusing firm of KPMG which in itself would have lent sufficient weight to accepting the computation without the necessity of proof by oral cross-examination. Also that NCC did not proffer an alternative or contradictory estimation of what Motophones losses were.

The Learned trial Judge had held as follows:-

“Under the Wireless Telegraphy Act Cap. 469 LFN 1990, the 2nd Respondent is responsible for issuance of telecommunication licenses. Section 6 provides that the Minister has the discretionary power to give Licenses. Licenses given by the Minister shall unless previously revoked continue in force for such period as may be specified in the licence. Under Section 6 (5), a license may be revoked on the terms, provisions or limitations thereof varied by a notice in writing of the Minister served on the holder of the licence or by a general notice applicable to licenses of the class to which the license in question belongs published in the Official Gazette. Then under paragraph 11 of the Regulation, a licence shall continue in force for one year from the date of issue and thereafter so long as the licencee pays in such year on or before the anniversary of the date of issue the rental fee prescribed by or under the regulations for the time being in force under section 30 of the Act. From the provisions of the Wireless Telegraphy Act Cap (469) LFN 1990 the Minister has the power to do among other three things.

These are:

1. Grant a License.
2. Renew a License.
3. Revoke a License.

The responsibility of the minister to carry out any of these duties is not absolute. He has a duty to exercise his discretion as is fair and justifiable in any situation that has arisen. The act of the Minister that has generated this matter is his revocation of the frequency license granted the applicant. The frequency licence does not stand on its own. It was meant to be the soul of the other licenses granted by the 1st Respondent for GSM and other telecommunication Services in the country. The reason given by the 2nd Respondent for the action is that the frequency license granted has run its life span of one year and has expired. When a license of this nature expires and there is provision made by the law for renewal, I believe that in the circumstances of this case an option of renewal would have been the fair option and it is only after that option has failed that a revocation power would have been invoked in the interest of fairness, equity and justice.

The law as it is today in Cap. 469 LFN1990 does not however layout this sequence for the exercise of the discretion allowed the Minister who is the 2nd Respondent by the said law. It is this gap that the 2nd Respondent has exploited to revoke the said license by virtue of the letter written to the Applicant. Arguments were proffered in this case that the minister did not serve the required notice.

The law made provision for the option of writing directly to the applicant or publishing the notice of the revocation in the Gazette. There is no part of the law that requires that the minister must publish the notice of the revocation in the Gazette. The action of the minister as per the letter is in line with the Wireless Telegraphy Act. The 1st relief in view of this finding cannot be granted. It is therefore dismissed.

For the 2nd relief, the 1st Respondent had a full fledged contract with the applicant that the licenses will be for a term of ten years and even renewable thereafter…….. The applicant has established the fact that the same licenses they acquired from the 1st Defendant were the licenses resold to another operator called GLOBACOM. That no doubt has resulted in the breach of the contract the applicant had with the 1st Respondent. The 1st Respondent’s defence is that the frequency allocated the applicant has been withdrawn when the frequency was withdrawn the applicant who procured the frequency ought to be given the opportunity to repossess it since that was not done and the 1st Respondent revoked the licenses, this is a breach of the contract the 1st Respondent had with the applicant. The 2nd Respondent has no share of the blame in this situation because the contract between the applicant and the 1st Respondent is different and separate from the Transaction the applicant had with the 2nd Respondent ……….The case against the 2nd Respondent is accordingly dismissed. The breach of contract alleged against the 1st Respondent from the foregoing has been clearly established and she is liable for the breach ……..

The applicant is claiming damages in this case for breach. The applicant is claiming a sum of $2,892,869.77 in the aggregate as damages. It is trite that the law demands that damages are soberly pleaded by the plaintiff in his pleadings. In the instant case, the plaintiff has pleaded for the items of damages.

In assessing damages, the applicant has itemized the specific ones incurred. Evidence of such ones was documented payments made for the Licenses. This is not in dispute.

The applicant has a specific claim for payments made to consultants, expenditure rents and staff salaries, capital expenditure, infrastructure equipment and facilities and loss of profit. The only evidence put up for these heads is the report of the Audit firm of KPMG which was prepared by Bashorun J.K. Randle. The controversy generated by that report in this case was that the author of the report was not called in evidence. It was also contested that all the projections made for loss of profit was not backed up by way credible evidence………This failure to call the maker of that report as a witness is no doubt fatal to those heads of claim because the report remains a mere projection without any weight. There is no specific evidence put in to justify or establish as is required the payments made to the consultants, the irrevocable commitments with 3rd parties and recurrent expenditure, rents and staff salaries. There is also no specific evidence as to capital expenditure on infrastructure equipment and facilities. These were all itemized as particulars of special damages which required proof. These items of special damages have not been proved so the Court cannot grant them. What is left for the plaintiff in addition to the documented payments made for licenses earlier found for the plaintiff is the issue of general damages for the breach of the contract. From the nature of the breach here and the state of pleadings and evidence, the plaintiff suffered other unquantifiable loss from the breach of this contract.

From the foregoing, I come to the conclusion that the Applicant in the instant case no doubt was granted Licence and she engaged in putting up efforts to roll out the communication services. There is evidence that she has deployed equipment at some zones as required by the licence before the breach of the contract. She no doubt suffered some losses which must be compensated by the Court in the interest of justice. Having looked into the level of loss in the circumstances of this case, I award to the Applicant in addition to the earlier refund of fees for licenses, a sum of Ten Million Dollars (US $10m). This shall also be paid by the 1st Respondent in this case”.

The object of award of damages for breach of contract is to put the injured party so far as money can do it in the same position as if the contract had been performed than the loss which he has suffered. It is the principle of restitutio in intergnum that is that in so far as the damages are not too remote, the plaintiff shall be restored as far as money can do it, into the position in which he would have been if the breach had not occurred.

The assessment of damages is calculated on the loss sustained by the injured party which loss is either in the contemplation of the parties or is an unavoidable consequence of the breach. Gurara Securities &. Finance Ltd v. T.I.C. Ltd. (1999) 2 NWLR (pt. 589) 29; Universal Vulcanizing Nig. Ltd. v. I.U.T.T.C. (1992) 9 NWLR (Pt. 266) 388 at 412; Ijebu-Ode Local Government v. Balogun Co. Ltd. (1991) 1 NWLR (pt. 166) 136 at 158.

The terms “general” and “special” damages are normally inept in the categorization of damages for the purposes of awards in cases of breach of contract. Also it is trite law that general damages cannot be awarded in an action for breach of contract as general damages belong to the realm of torts. Barau v. Cubitts (Nig.) Ltd. (1990) 5 NW I LR (pt. 152) 630; Nigerian Produce Marketing Board v. Adewunmi (1972) 1 All NLR (Pt. 2) 433 at 438; P.Z. and Co. Ltd. v. Ogedengbe (1992) 1 All NLR 202.

A breach of contract may only give rise to nominal damages unless the plaintiff could prove loss which arose in the usual course of things from the breach, that is expressly under the terms of the contract, and also such other loss outside the usual course of things as was in the contemplation of the parties at the time of the contract as the likely result of the breach of it, that is impliedly under the terms of the contract. In the latter case, the plaintiff must establish that the circumstances are to the knowledge of the defendant and that he impliedly undertook to bear the special loss referable to the breach. Barau v. Cubitts (Nig.) Ltd. (1990) 5 NWLR (pt. 152) 630 at 646; Maiden Electronics Works Ltd. v. A.G. Federation (1974) 1 SC53 at 97 – 98.

Damages in respect of a breach of contract are such as may fairly and reasonably be considered as either arising naturally in the usual cause 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. U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt. 421) 558 at 601 per Onu JSC.

In a claim for damages for breach of contract, damages are not awarded for the anticipated gross income but rather for net income or profit.

In considering a claim for damages for loss of anticipated profit, projection of an anticipated profit in a feasibility report, without more, has no weight and is not proof of such anticipated profit Artra Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (Pt. 546) 357 at 385 – 386i Odulaja v. Haddad (1973) 11 SC 357; Aku Nmecha Transport Services (Nig.) Ltd. v. Atoloye (1993) 6 NWLR (Pt. 298) 233; A.G. Oyo State v. Fairlakes Hotel (No.2) (1989) 5 NWLR(pt. 121) 255; Uwa Printers Ltd. v. Investment Trust Ltd,. (1988) 5 NWLR (Pt. 92) 110; Barau v. Cubitts (Nig.) Ltd. (1990) 5 NWLR(pt. 152) 630

The standard of proof required in establishing the amount of damages claimed in a case where the evidence in support is unchallenged is that the burden on the plaintiff is discharged upon a minimum of proof. Per Onu JSC in Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt. 350) 258 at 279-280; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Odualaja v. Haddad (1973) 11 SC 357 at 364; Imana v. Robinson (1979) 3 &. 4 SC 1 at 26; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 427 at 435.

An award of general damages is a matter for the trial court and normally an appellate court will not interfere with such award unless:

(a) where the trial court has acted under a mistake of law; or

(b) where the trial court has acted in disregard of principle; or

(c) where the trial court acted under a misapprehension of facts; or

(d) the trial court has taken into account irrelevant matters or failed to take account of relevant matters; or

(e) where injustice would result if the appeal court does not interfere; or

(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. Oyebamiji v. Fabiyi (2003) 12 NWLR (Pt 834) 271 at 303; Shell Petroleum Development Co. Nig. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657.

An appellate court must not allow an appellant to jettison before it the question on which the parties joined issues and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the appellant to commence an entirely new case before the appellate court. In the same vein, an appellate court before which a new point is sought to be canvassed will refuse to grant leave to do so where the fresh point raised introduces a new line of defence completely different from the issues fought by the parties in the trial court. Okenwa v. Military Governor Imo State (1996) 6 NWLR (Pt. 455) 394 at 407, Ejiofodomi v. Okonkwo (1982) 11 SC 74.An appellant will not be allowed to raise on appeal a fresh point or question which was not raised or tried or considered by the trial court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced. Where, however, as in the present case in relation to damages such a fresh point or question involves a substantial point of law which can be seen in the affidavit evidence as to whether or not there was reason for the cancellation of the license, substantive or procedural, and it is plain that no further evidence need be adduced which would affect the decision on the matter, the appellate court will allow the question to be raised and the point taken to prevent a miscarriage of justice. Okenwa v Military Governor Imo State (1996) 6 NWLR (454) 294 at 407; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 190; A.G. Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1 4 at 29; Bankole v. Pelu (1991) 8 NWLR page 523.

“General damages” are such as the law will presume to be the direct, natural or probable consequence of the act complained of whereas “Special damages” are such damages as the law will not infer from the nature of the act complained of. They are exceptional character wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that, whereas, in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man In the latter case all the losses claimed on every item must have crystallized in terms and value before trial. Per Muhammad JCA (as he then was). Adekunle v. Rockview Hotels Ltd. (2004) 1 NWLR (Pt. 853) 161 at 173-174; Akinfonle v. Mobil (1969) NCLR 253; Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (pt. 166) 135; Momodu v. University of Benin (1997) 7 NWLR (pt. 512) 325; Gamoruna v. Boro (1997) 3 NWLR (Pt. 435) 530; Orient Bank (Nig.) Plc. V. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37; Adedo v. Ismaila (1998) 11 NWLR (Pt. 573) 214;

In Uwa Printers (Nig.) Limited v. Investment Trust Company Ltd. (1988) 5 NWLR (Pt. 92) 110 Supreme Court, held:-

“1. In contracts for the loan of money, the normal measure of damages for the lender’s failure to provide the money is the amount required by the borrower to go into the market and effect a substitute loan for himself less the amount that the contractual loan had required.

2. The damages recoverable in a breach of contract to lend money may be large or small, or merely nominal according to the circumstances. They will be nominal if the plaintiff, as a man of good credit can readily obtain a loan elsewhere, but if he cannot obtain the money except at a higher rate of interest, or for a shorter term of years, or upon other more onerous terms, the damages would be greater and might be very substantial. There may also be consequential losses. Thus the damages may include the cost of raising the money elsewhere.
3. An appellate Court can only interfere with the damages awarded by a Lower Court if it satisfied that the Lower court applied wrong principles such as taking into account some irrelevant factors or leaving out of account some relevant factor that the amount awarded is either so ridiculously low or so ridiculously high.
4. The claim for loss of profit was prospective in that the loss has not actually occurred. The Plaintiff was therefore claiming anticipated profits. Anticipated profits being special damages must be established by evidence. Odumosu v. A.C.B. (1976) 11 SC55.

In Oyebamiji v. Fabiyi (2003) 12 NWLR (pt. 834) 271, it was also held:-

“1. Damages claimed as recoverable for legal moneys owe their existence to the legal wrong. This results in the amount of general damages where it cannot be shown that the trial court misapplied the relevant principles in awarding damages, there would be no basis for the appellate court to interfere.

2. The Court of Appeal is entitled to interfere with an award of damages made by a trial Court in appropriate cases. The test to be applied should be an objective one whether the trial court reached its judgment at first instance on a correct principle of law and thereby reached a correct estimate of damages. However, the appellate Court will decline to reverse the finding of a trial court on issue of damages merely because it thinks that if it had tried the case in the first instance it would have given a lesser sum. Shell Petroleum Development Co. Nig. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657”

In the grounds for the reliefs sought in the Judicial Review the 1st Respondent as Applicant in the Court below had averred in paragraphs 4- 10 that the Applicant had been granted by the Appellant/Defendant, NCC a National Licence to provide and operate a GSM Mobil Cellular Network Service in Nigeria with the necessary conditions in fulfillment of which the Applicant now 1st Respondent had paid several sums of money required.

The 1st Respondent had then proceeded to procure facilities and infrastructure apart from entering into various contracts with international corporations for supply, installation and support of the said infrastructure, employment of staff and rent on sundry operational premises in excess of US $10,525,885 and all these to the knowledge of the Appellant. After all that the Applicant now 1st Respondent commenced operations on 26th May 1999 only for the 2nd Respondent sometime in October 1999 to impose additional licence fees of US$100,000,000 (N100 million) in respect of which the 1st Respondent complied with producing a bank guarantee to that effect at the cost to itself of US $1,000,000 (one million dollars) and on the day that bids were to be officially presented 1st Respondent unilaterally and without proffering any reasons cancelled the process. That on the 24th October 2000 Appellant revoked the 1st Respondents’ licences, offering to refund the licence fees paid in September 1997 and proceeded thereafter to auction the frequencies earlier granted to 1st Respondent and awarded same to third parties (NITEL, ECONET, GLOBACOM and MTN). It was based on the foregoing that the learned trial judge had no difficulty in holding that the plaintiff suffered other unquantifiable loss from the breach of this contract and had suffered losses which must be compensated by the Court in the interest of justice.

It is that finding and conclusion of the Court below which the appellant has a quarrel with and I am in difficulty to appreciate that point of view except to explain it as the arrogance of the strong and big when in contest or in a contract agreement with the disadvantages or smaller party. All I see is the trial Judge as much as he can possibly do attempting to put the 1st Respondent, the injured party in a position so far as money can do it as if the contract had been performed if the breach had not occurred. The basis for the trial court’s standpoint and award cannot be faulted. I refer to the cases of: Gwara Securities &. Finance Ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29; Ijebu-Ode Local Government v. Balogun Co. Ltd. (1991) 1 NWLR (Pt. 166) 136 at 158; U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 at 601.

The fact that damages are difficult to assess does not disentitle a plaintiff as in the case in hand where there was a lot from which the trial Judge could and in fact did make his assessment on compensation for loss resulting from a defendant’s breach of contract. The trial judge exercised a discretion having considered the pleadings and evidence from which he discerned the losses which could not be ignored and showed the handling of a discretion which was properly exercised and this court has no basis to interfere. Similarly the fact that the amount of such loss cannot be precisely ascertained does not also deprive a plaintiff of all remedy. Per Ogwuegbu JSC. Nzeribe v. Dave Eng. Co. ltd. (1994) 8 NWLR (Pt. 361) 124 at 147, Onadiale v. Adejeroh (1976) 12 SC 87; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

From the above I resolve the issues 2, 3, & 5 in favour of the 1st Respondent.

ISSUE NO.4:

Whether or not the Appellant was guilty of any breach or wrongdoing in regard to licenses issued to the 1st Respondent. Learned Senior Advocate for the Appellant said the 1st Respondent gave the impression that a straight forward and unconditional licence was awarded to it which is far from the case. He stated that the preconditions and conditions that 1st Respondent was to comply with and said the sum of it all was that 1st Respondent initially met some of those conditions but did not meet others and in some instances ceased to meet certain conditions. That the letter dated 24th October, 2000 the Appellant wrote to the 1st Respondent and offered to refund the licence fees paid by the 1st Respondent on account of loss of its frequency was not a letter withdrawing the licenses or revoking the licenses either.

Mr. Dodo went on to say that the Appellant’s gratuitous offer to refund the licence fees cannot amount to wrongdoing or breach on the part of the appellant. That it was 1st Respondent who turned down the offer even though the licenses are still valid as there was no withdrawal or revocation. That the learned trial judge mistook frequency allocation/license for service Licence. That while Appellant awards licence for services, it is the 2nd Respondent who grants frequency allocation/licence. Therefore that if GLOBACOM was allocated frequency earlier given to the 1st Respondent, it was not done by the Appellant since the Appellant was not the allocating authority under the law, and so should not be held liable or responsible for the resale of the frequency licence, if that was true.

Mr. Candide-Johnson for 1stRespondent said that the conditions enumerated by the NCC were not the reasons given by it for revoking Motophone’s licence. Secondly that NCC did not assert before the Lower Court, that the listed conditions were the reasons why the NCC revoked the licence and so should be ignored. Also that the Appellant had by those assertions raised fresh point for which leave of this court has neither been sought nor granted. He cited Kwajaffa v. Bank of the North Ltd. (2004) 13 NWLR (pt. 889) 146 SC; Okenwa v. Military Governor Imo State (1996) 6 NWLR (Pt. 455) 394.

Learned Counsel further submitted for 1st Respondent that the basis of the issuance of the licence was the payment of the stipulated fees amongst other conditions and it is only logical that a refund of the fees amounts to either a refusal to issue the licence or a withdrawal/revocation. This issue has been answered in answers made in Issues 2, 3, & 5 and that is positively and against the Appellant, as even the Appellant can answer the question that they were in breach, this appeal cannot be allowed and is hereby dismissed as I affirm the judgment and orders of the Court below.

CROSS- APPEAL:

The Learned Counsel for the Cross – appellant, Mr. Candide-Johnson posed the question:

“Whether the learned trial Judge did correctly or at all assess damages due to Motophone or whether the issue ought to be re-assessed”.

Mr. Dodo for the Cross – Respondent adopted this single issue.

Mr. candide – Johnson contended that in an action for breach of contract, the measure of damages is the loss flowing from the breach and is incurred in direct consequence of the violation. That the damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract, as inevitably arising if one of them broke faith with the other. He cited Swiss – Nigeria Wood Industries ltd. v. Bogo (1970) 6 NSCC 235 at 240; Hadley v. Baxendale (1854) 9 Exh. 341.

That the duty of the Court is to determine the nature of the damages claimed for breach of contract, and under what head it falls ie special, general, nominal or any other head of claim. That general damages are those losses flowing naturally from a breach, while special damages are those that are not a necessary consequence but arise from special facts which the plaintiff must therefore itemize in order not to take the other side by surprise. He said if a plaintiff has specifically pleaded loss of anticipated profit, even without stating whether it is an item of special damage or general damage, he is entitled to prove it by evidence and recover the amount if the evidence in respect thereof is sufficient and the onus is on the plaintiff to establish the accuracy of the projected gross profit in proof of his claim. He referred to A.G. Oyo State v. Fairlakes Hotels Ltd. (NO.2) (1989) 5 NWLR (Pt. 121) 255j Uwa Printers Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (Pt. 92) 110; Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR (Pt. 1) 24; Barau v. Cubits (Nig.) Ltd. (1990) 5 NWLR (Pt. 152) 630 at 649; Shell PDC v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439.

Learned counsel for the Cross-Appellant further stated that in assessing damages, the court is entitled to consider depriving the Defendant of profit that it has made through a breach. That it is established under common law that where a breach of contract also amounts to an invasion of a property interest vested in the claimant, he may obtain a remedy which has the effect of depriving the contract breaker of his profit. He cited A.G. v. Blake (2001) A C 268.

Mr. Candide – Johnson said that there has been a fundamental misconception by the Lower Court of what “credible evidence” entails. That the proceedings were one for Judicial Review and the proceedings are conducted by way of preponderance of affidavit and exhibit evidence, as the facts are usually not in dispute, but rather, the court’s jurisdiction is invoked to pronounce upon the validity or otherwise of an administrative, executive or judicial act. That the decision to call a witness is usually the discretion of the Court, to elucidate on matters of conflict in the opposing affidavits, where the court cannot make a finding on the depositions therein alone. Also that the Cross-respondents neither challenged the veracity or otherwise of the report nor substituted their own opinion of what they considered was the loss to the Plaintiff. Also that the standard of proof foisted on the Plaintiff by the Court was onerous and not in accordance with the provisions of the Evidence Act.

That in this cross – appeal the Cross Appellant seeks the alternative remedies of either a reassessment of the damages awarded by the lower court or setting aside the award and granting a new trial. That in this court the appellate court will not interfere with the award of damages by the trial Court unless:

(a) where the trial court has acted under a mistake of law; or

(b) trial court acted in disregard of relevant principles of law where the; or

(c) where the trial court acted under a misapprehension of facts; or

(d) where it has taken into account irrelevant matters or failed to take account of relevant matters; or

(e) where injustice would result if the appeal court does not interfere; or

(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage.

He cited Adekunle v. Rockview Hotel Ltd. (2004) 1 NWLR (Pt. 853) 161; Oyebanji v. Fabiyi (2003) 12 NWLR (Pt. 834) 271; Adike v. Obianeri (2002) 4 NWLR (Pt. 758)537; UBA Ltd. v. Ademuyiwa (1999) 11 NWLR (Pt. 628) 570; Gwara Securities & Finance Ltd. v. TIC Ltd. (1999) 11 NWLR (Pt. 589) 28; UBN Ltd. v. Odusote Books Ltd. (1995) 9 NWLR (Pt. 421) 588; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 381) 124.

Mr. Candide – Johnson stated on that by failing to consider the report of KPMG as proof of loss of the plaintiff in the assessment of damages, the court both acted on a wrong principle of law and also failed to take account of relevant matters. He cited J.O.O. Imana v. Madam Jarin Robinson (1979) All NLR 1.

Learned counsel said that although a court is not bound to accept the evidence of opinion of an expert but it must give it’s reason for the rejection. He cited Elf (Nig.) Ltd. v. Stillo (1994) 6 NWLR (pt. 350) 258; A. G. Oyo State v. Fairlakes Hotels Ltd. (NO.2) (1989) 5 NWLR (Pt. 121) 255; Arta Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (Pt. 546) 357.

That the court is obliged to act upon the affidavit evidence and to order trial of the issue of damages as if begun by writ if it considers that oral evidence is required. He cited R v. Tower Hamlets LBC, ex parte Khalique (1994) 26 HLR 517.

Mr. Dodo SAN for the Cross – Respondent stated that the judgment of the Lower court was that the Cross-Appellant pleaded damages arising from the purported breach, particularly expenses and loss of anticipated profit but failed to produce documents evidencing the expenses and in regard to anticipated profits, failed to call the expart who produced the “report”. He said the main factors discrediting the “report” included the following issues:-

(a) The maker of the report was not called upon to be cross-examined. He referred to Ogiale v. Shell Petroleum Dev. Company (1997) 1 NWLR (pt. 450) 148; Artra Ind. (Nig.) Ltd. vs. NBCI (1998) 4 NWLR (pt. 450) 357 at 385; ACME Builders v. Kaduna State Water Board (1999) 2 NWLR (pt 590) 288 at 305.

Learned Counsel for the Cross – Respondent stated that the 1st Respondent/Cross Appellant had found it difficult to make a claim in any specific sum before this Court and referred to relief 1 in the Notice of Cross-appeal. That what Cross appellant is actually calling for is fresh hearing on the evidence with regard to damages knowing that the evidence led at the Lower Court did not prove any damages. That even if the expert witness had been called and even if his opinion was unchallenged, the Lower Court could not have relied on the report in the absence of evidence that would substantiate the report. He said for a whopping claim of almost three billion US Dollars (over N442 Billion), the omission to attach receipts and evidence of payment is fatal.

This Cross – Appeal is another way of reframing the main appeal and it is no use delving into it since the question had been already answered. It is unfortunate that the arrears of special damages had not been specifically proved such as doing more with the report of the auditing firm of KPMG like having the auditor or his agent testify and be cross-examined. See Ogiale v. Shell PDC (1997) 1 NWLR (pt 450) 148. What I see in this cross-appeal is that the Cross-appellant wants a cosmetic surgery of a properly decided, decided case. Also what the Cross-appellant seeks in the nature of a new trial for a favourable assessment of the damages is not tenable in the prevailing circumstances. This Cross-appeal is dismissed.

Costs of N100,000.00 to paid by the Appellant to the 1st Respondent, in the main appeal. In the cross-appeal parties to bear own costs.

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Other Citations: (2007)LCN/2475(CA)