NCC v. MOTOPHONE LTD & ANOR CITATION: (2019) LPELR-47401(SC) In the Supreme Court of Nigeria ON FRIDAY, 12TH APRIL, 2019 Suit No: SC.6/2010 Before Their Lordships: IBRAHIM TANKO MUHAMMAD Justice of the Supreme Court KUDIRAT MOTONMORI OLATOKUNBO Justice of the Supreme Court KEKERE-EKUN AMIRU SANUSI Justice of the Supreme Court PAUL ADAMU GALUMJE Justice of the Supreme Court UWANI MUSA ABBA AJI Justice of the Supreme Court Between NIGERIAN COMMUNICATION COMMISSION - Appellant(s) And 1. MOTOPHONE(2019) LTD LPELR-47401(SC) - Respondent(s) 2. MINISTER OF COMMUNICATIONS RATIO DECIDENDI 1. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Purpose of formulation of issues for determination and attitude of Court to splitting of issues into sub-issues "On the preliminary point raised by the learned Counsel to the 1st Respondent on the competence of issue 1 (ii) & (iii) formulated by the Appellant, that by Order 6 of the Supreme Court rules, there is no provision for "sub issues" and that issue 1 (ii) & (iii) be struck out by relying on HUSSEIN V. MOHAMMED (2015) 3 NWLR (Pt. 1445) AT 126, I must not overlook. Issue 1 apparently appears split or to carry sub issues with it instead of being one whole issue for the determination of the appeal. What the Appellant did has the effect to obscure and obviate the fundamental and core issue in this appeal especially on issue 1. This is most undesirable and condemnable! The main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Counsel must learn to assist the Court rather than muzzle and puzzle things up for the Court. I may however forgive this for the sake of justice since the said split or sub issue can give some meaning and understanding to a reasonable mind without misleading or occasioning miscarriage of justice to the 1st Respondent. Thus, 'A party who complains about the formulation of issue or issues by the Court must say what injustice has been done to him by such formulation. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue by the Court must result in miscarriage of justice for this Court to intervene in favour of the appellant." See Per TOBI, J.S.C in NWANA V. FCDA & ORS (2004) LPELR-2102(SC). I cannot therefore give place to the preliminary objection raised by the learned Counsel to the 1st Respondent."Per ABBA AJI, J.S.C. (Pp. 9-11, Paras. F-B) - read in context 2. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in which an appellate court will interfere with award of damages made by a trial Court "...an appellate Court will not entertain an appeal against award of general damages unless it is shown that such award was manifestly so excessive as to amount to an erroneous estimate having regard to the evidence. See NIGERIAN BOTTLING CO. LTD. V. NGONADI (1985) 1 NWLR 739 AT 741 RATIOS 9 & 10."Per ABBA AJI, J.S.C. (P. 30, Paras. E-F) - read in context 3. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION:Options available to a respondent as regards formulation of issues; effect of issues formulated by a respondent outside the grounds of appeal of the appellant "It is trite that a Respondent/Cross Respondent has these limitedly available options when framing issues for determination; to adopt the issues formulated by the Appellant; give the Appellant's issues a slant in favour of his side of the case; or formulate his own issue. However, the issue so formulated must be derived from the Grounds of Appeal raised by the Appellant. The cross Appellant is therefore, the owner of the Grounds of Appeal and the cross Respondent has no business conceding the said Grounds of Appeal to the cross Appellant. See Per AUGIE, J.S.C in PATRICK V. STATE (2018) LPELR-43862(SC). Furthermore, for the Respondent in an appeal to validly raise any issue not related to or arising from the grounds of appeal filed by the Appellant,(2019) such Respondent must LPELR-47401(SC) file a cross-appeal or file a Respondent's Notice. See MOMODU V. MOMOH (1991) 1 N.W.L.R. (PT. 169) 608 and OSSAI V. WAKWAH (2006) 4 N.W.L.R. (PT. 969) 208. This has unfortunately not been done by the cross Respondent in this cross appeal. The issue raised by the cross Respondent outside the Ground of the cross Appeal is incompetent and must be struck out."Per ABBA AJI, J.S.C. (Pp. 42-43, Paras. F-F) - read in context 4. 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 "For a cross appeal against the award of damages to succeed, the cross Appellant must show that the trial judge proceeded upon some wrong principle of law or that the award was an entirely erroneous estimate. See Per UWAIS, J.S.C in WILLIAMS V. DAILY TIMES OF (NIG) LTD (1990) LPELR-3487(SC). I have not seen wrong principles or error on the basis for the award given by the trial Court." Per ABBA AJI, J.S.C. (P. 46, Paras. D-F) - read in context 5. COURT - JURISDICTION: Whether a 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 "It is argued by the Appellant that the lower Court of Appeal lacked the jurisdiction to proceed with and determine the appeal, the action being fundamentally defective, incompetent and premature based on the allegation that the conditions precedent to activate action against the Appellant were not followed by the 1st Respondent. I must quickly state that once a legislation provides for a condition precedent before a Court has jurisdiction, that condition must be fulfilled subject to recognized exceptions. The suit would be incompetent if the Court does not ensure that there is compliance with the condition precedent. See Per RHODES-VIVOUR, J.S.C in UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-20092(SC). By the Originating Motion at page 3-5 of the record, it is deducible that the cause of action arose in 2000 vide the letter MC/TD/2000/VOL 1 dated 3rd October 2000. The Act applicable to the contractual relationship between the Appellant and the 1st Respondent was the 1992 NCC Act. The Sections 85, 86 and 87 of the Nigerian Communications Act, 2003, providing for the preconditions and procedural steps to be taken by the 1st Respondent heavily clinched on now by the Appellant came in 3 years after the cause of action arose. It is therefore jurisprudentially wrong for a substantive legislation or law to have a retrospective effect. Per OPUTA, J.S.C in AFOLABI Per ABBA AJI, J.S.C. (Pp. 19-23, Paras. D-A) - read in context (2019) LPELR-47401(SC) 6. COURT - DUTY OF COURT: Duty of Court to consider issues placed before it; instance where failure to do so will not amount to denial of fair hearing "It is firmly settled that it is the duty of all Courts to consider and resolve all issues placed before it except in the clearest cases. The issue 4 complained of by the Appellant for non-consideration by the lower Court of Appeal was for "Whether or not the Appellant was guilty of any breach of wrong doing in regard to licenses issued to the 1st Respondent." See page 136 of the record. It is glaring that this issue was considered separately from page 185-188 by the lower Court. In fact, at pages 187-188 of the record, the lower Court held from the 3rd paragraph to the next page thus: Learned Counsel further submitted for the 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... In the instant appeal, the issue 4 complained of by the Appellant will amount to superfluity and over flogging the matter since the lower Court has discharged its statutory duty. Additionally, Per ALOMA MARIAM MUKHTAR, J.S.C in OPUIYO & ORS V. OMONIWARI (Deceased) & ANOR (2007) LPELR-2751(SC) had cause to observe thus: The learned counsel for the appellant has submitted that where the Court of Appeal fails to consider the issues or any issue raised on appeal before it, the Supreme Court can consider it. He placed reliance on the case of Ukwunnenyi & Anor v. The State (1989) 4 NWLR (pt.114) 131, (1989) 7 SCNJ 34. I agree that this Court has the power to consider the issues as per the above authority. It is in this light that I will tow same line with the trial Court and the lower Court that the question in that issue would have been "yes", to work against the Appellant. Obviously, the Appellant was in breach to have revoked and confiscated the license of the 1st Respondent instead of renewing same.