BARRISTER ACHUNULO GODWIN JUNIOR VS MTN NIG LIMITED- Contract- Breach of Contract- Text Message Contract- Admissibility of text message- Admissibility of Electronically generated evidence- Authentication of document- delivered by Hon. Justice Innocent M. Njaka

IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

HIGH COURT NO: 11

ON WEDNESDAY, 19^THJUNE 2019

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HOW/110/12

BARRISTER ACHUNULO GODWIN JUNIOR PLAINTIFF

AND

MTN NIG LIMITED DEFENDANT

JUDGMENT

The Plaintiff filed his writ of summons on the 22-2-12. The suit was re-assigned and commenced in this court on 14-3-17. The Plaintiff in his FURTHER AMENDED STATEMENT OF CLAIM demanded from the defendant as follows:

To render account of all monies realized from 8^th December 2010 till this suit is determined, and pay the claimant his due having run their advert through my phone.
The sum of N10, 000,000 (Ten Million Naira) being damages for this corporate exploitation, extortion and compensation for using his line to run their numerous adverts at his cost and to his vexation and annoyance, and for breach of contract.
To credit to his account the whole N50.00 Naira monthly deducted from his account from December 8^th 2010 till this suit is determined.
To render an unreserved apology to the Claimant.

The Plaintiff in the effort to prove his case testified as PW1 and called another who testified as PW2.

EVIDENCE OF THE PW1:

The Plaintiff on oath stated that he knows the Defendant. On 22/2/12, he filed a written deposition which he adopted as his evidence. On 10/12/15, he filed Further Amended Statement of Claim. In the written deposition testified that his name is Barrister Achunulo Godwin Jr. a legal practitioner and have his law office at No. 60 MCC Uratta Road, Owerri Imo State. He is the owner of MTN NO. 08037964151. On the 8^th day of December at exactly 01:52:24 am, the defendant sent him an offer with the following words: “inspire your callers with inspirational tunes” text 010001 for ‘I have a dream’, 010031 for ‘Amazing grace’, 010063 for ‘I can fly (RKelly). Send text to 4100 N50/sms.

He accepted the offer on the same 8^th day of December at 06:26:51a.m without more by subscribing to “I have a dream” coded 010001. The defendant sent him another text message which reads as follows “you have successfully subscribed to MTN Caller tunez at 06:26:52 a.m.

Contrary to the offer the defendant made to him and which he accepted and upon which deduction was made from his account, the defendant sent him another text message which reads as follows” sorry you cannot purchase this tune 010001 with tune name MLK Dream and singer name Martin Luthe King as the charging failed at 06:26:54

As though this play upon his psyche was not enough at exactly 08:40:34 a.m. the defendant sent his message which reads as follows “Y’ellow! caller tunez fee of N50.00 from 2010 12/08 to 2011/01/07 has been deducted. Thank you!

Instead of the “I have a dream” the defendant offered to him and which he accepted, till date the defendant entertains his numerous callers and clients spread across with different MTN Adverts while charging him at end of every month.

He has suffered untold psychological trauma anguish, pain and embarrassment. He wrote them to render apology and correct corporate fraud on him and teeming Nigerians and they failed to heed the warning.

Continuing he said he made reference to SMS sent to him by the defendant regularly to apply to a caller tune. He opted for ‘I have a dream’ and he saved the message on his phone.

The Defendant sent him similar messages and they were all saved in the cell phone, the deduction is ongoing and some are contained in the phone he use presently, but he saved the initial messages in the phone he used that time. That is the phone. Continuing, He told the court that the defendant was sending him sms messages, and they were all saved in his phone. The period the defendant was sending him the sms messages, he used the phone for daily transactions, his day to day business. It was in the same phone that every information sent to him was saved. It is in use from that time to now. It was in perfect condition and still in perfect condition till date. Presently he removed his sim card from the cell phone. If he sees the phone he will recognize it. Admitted in evidence and marked exhibit PW1.

Continuing he stated that in his evidence he pleaded a document dated 15/12/10, a letter written by his counsel to the defendant. If he sees the letter he will recognize it. The letter dated 15/12/10 and addressed to the general manager MTN (Nig) Communication Limited is admitted in evidence and marked Exhibit B

Under cross examination

When the letter was served on them they called him and told him to channel his grievance to their head office at Lagos. They gave an address, Golden Plaza Falamo Ikoyi Lagos. The bailiff of court went to serve them, they refused to collect, and the bailiff threw it down before the manager, they refused to collect. They picked it up and started calling him. He is not the court bailiff. They filed in the court and they paid for it. He cannot recollect when the bailiff served them. He was asked if the bailiff since he served them has not informed him whether he has deposed to affidavit of service and he replied that he did not consider it necessary, since the recipient called him and told him to channel his grievance to their head office. On the question if it is out of ordinary to state that the subscription he complained of, can emanate from other source other than MTN he replied that his line is MTN line, every of his dealing was with MTN. It was suggested to him that other person or persons may as well receive the same subscription not emanating from MTN and he responded that he is talking of himself not other parties. He received subscription from MTN. He is a witness of truth.

EVIDENCE OF PW2

PW2 is Uzo Arinze Ayoka Esq. He testified that he is a legal practitioner with office address at No 12/23 Wetheral Road Owerri, Imo State. He adopted his written deposition made on 20-6-13 wherein he stated that he knows the claimant as well as the defendant. The claimant is a legal practitioner based in Owerri, as well as a subscriber to the Defendants telecommunication network, while the defendant is a telecommunication provider.

Since the 8/12/2010 till date whenever he calls the cell phone number of the claimant he does hear a caller tune which is purely an advertisement for the defendants company.

On 10/01/2011, he confronted the claimant and asked him why “he is using his cell phone number to conduct advert for the defendant, it is at this point that the Plaintiff showed him all the transactions he had with the Defendant in respect of a caller tune.

Under Cross Examination.

He made a call across to the Plaintiff in the course of the waiting for the Plaintiff to pick up the call he heard a ringing tune which is an advertisement in nature. In the said ringing tune it was saying buy laptop etc. Then he confronted the Plaintiff and asked him if he has become an advertisement agent for the defendant. At that point he told him and also showed him that he subscribed to a ringing tune “I have a dream” from the defendant but instead of defendant to play the said ringing tune they now decided to use his phone for advertisement to enrich themselves. At that point he showed all the deductions they have been making from this credit and also showed him a letter he wrote to them to cancel the said ringing tune which according to him felled on deaf ears. It was in 2010 and as at that time it was monthly deduction of N50.00. It could be recalled it was in 2010 about 8years ago and he strongly affirm that what he heard was advertisement to the credit of the defendant

Defence’s evidence

DW1 Adakunle Ogubaduja testified that he works with MTN communications Limited, his designation is fraud analyst. On 21/4/12 he made a written deposition wherein he stated that the defendant is a telecommunication service provider and she is licensed to carry out telecommunications business in Nigeria.

He denied paragraph 3 of the amended statement of claim and state that the offer with “33022” did not emanate from the defendant; that the text messages which the defendant sends to her subscribers emanate directly from “MTNN” and not from any short code. In further answer thereto, he stated that most of the unsolicited SMS complained of generally emanate from third parties with whom the defendant has no control or contractual relationship with. Such third parties use several means such as auto dialers and cloning devices to generate numbers to address such SMS to the general public. The perpetrators of this practice often utilize very sophisticated spamming technologies designed to circumvent detection.

He denied paragraphs 4,5,6,7 and 8 and in answer to them stated that the defendant did not sent or make any offer to the claimant as she does not sent to her subscribers offer with No

“33022”. Such offer did not emanate from her and has not emanated from her. Paragraph 9 is denied as the claimant is not entitled to any relief sought.

Cross examination

He is not aware of one Mr. Noble Amadi that had earlier on filed written deposition on oath dated 15/11/2013. There is no difference between his written deposition and that of Mr. Noble Amadi except signature. The statement in paragraph 5 of his written deposition and paragraph 5 of one Noble Amadi is based on the practice and experience so far in telecom where they see lot of people going on internet to spam others for motive best known to the fraudster. 08037964151 an MTN line. He was asked to note the following advert played on National dailies and televisions and used as a caller tunes in the phone in question. ‘Thank God MTN is 10 Win your laptop win your share, Yellow Yellow Christmas – all these adverts were they played by those who used superior technology as stated in paragraph 5’, he replied none that he is aware of. It was put to him that there is no fraud anywhere because the deductions were done by MTN and he replied that it is not true. It is not true that till date MTN remains the beneficiary of the monetary deduction from the plaintiff’s air time. He was told that even the defendant was wrote to stop deductions she ignored them, he replied that MTN attends customers complaints.

It is not true that till date the MTN have not refuted the deduction from the plaintiff’s phone. It not true that he is not a witness of truth. He was told that it is only MTN that has the power to deduct from my airtime and he replied that MTN deduct from airtime for services rendered to the customer

FINAL WRITTEN ADDRESSES

At the close of evidence, counsel exchanged addresses

The Plaintiff on his part formulated issues for determination as:

WHETHER THERE WAS CONTRACT BETWEEN THE PARTIES WHICH THE DEFENDANT BREACHED.
WHETHER THE PLAINTIFF HAS PROVED HIS CASE.
WHETHER THE PLAINTIFF IS ENTITLED TO DAMAGES.

Whether there was contract between the parties which the defendant breached is answered in the affirmative. The phone number 08037964151 belongs to the plaintiff sold to him by the defendant. This, the defendant has not denied. It is submitted that there is existing relationship between the defendant and the plaintiff. The defendant maintains and runs the line at the cost of the plaintiff, showing on-going and existing contractual relationship between the parties and hence the defendant owes the plaintiff a duty of care. See Yesuf V A.C.B (1981) ISC 74. 98-99.

The Plaintiff made reference to the The blacks LAW DICTIONARY 10TH edition page 389 definition of contract as an agreement between two or more parties creating obligation that are enforceable or otherwise recognizable by law.

According to the counsel, for a valid contract, there must be five ingredients which must co-exist and which ingredients exist in the instance case i.e. (a) offer (b) acceptance (c) Consideration (d) intention to create legal relationship (e) capacity to contract. Referred to B.F.I GROUP V. BUREAU OF PUBLIC ENTERPRISES (2008) ALL FWLR (PT 416) 1915 @1937-1938 PARAS H-B. See equally Exhibit A

It is submitted that the offer came when the defendant sent the text message “inspire your callers with inspirational tunes” text 010001 for I have a dream, 010031 for amazing grace, 010063 for I can fly (R Kelly) send text to 4100 #50/sms. It is submitted that the acceptance was when the plaintiff sent the text 4100 #50/sms. “You have successfully subscribed to MTN caller tunes at 06:26:52 am was sent to plaintiff to acknowledge that contract existed from that time to give plaintiff caller tunes 010001 for “I have a dream”. See Exhibit A. “Yellow! Your monthly caller tunes fee of #50.00 from 2010 12/08 to 2011/01/07 has been deducted. Thank you!’ is described as the consideration. See Exhibit A.

It is submitted that as a matter of practice, in all commercial transactions, parties usually intend legal relationship as every commercial activity is intended to make profit. That is where one of the parties fails to fulfill his promise, the other has right to seek redress see ESO Petroleum co. Ltd V Customs and Excise (1976) W. L.R.I.

It is submitted that both the plaintiff and the defendant have capacity to contract. It is submitted that all the five ingredients that make for a valid contract co exist in the instant case. It is submitted that the only defense by the defendant to this suit is that the text messages did not emanate from her. To this it is submitted that this argument cannot avail the defendant. It is a very lame argument. Till date the defendant has not at any forum, in print, media or television denied deductions from the account of her numerous customers and plaintiff in particular.

On cross examination the DW1 was asked until date MTN has not refuted the deductions and he answered ‘not true’. It is a trite position of law that he who asserts, must prove, to proof refute of deductions is the duty of the defendant which he failed to discharge. See cross examination of Dw1

The defendant has not till date denied providing caller tunez as one of its numerous packages to her numerous customers.lt is still a product of MTN. DW1 did not deny same neither was it denied in the statement of defence and nothing presented to the court to show same.

The DW1 is not aware of anything when confronted with different adverts known by Tom, Dick and Harry that belong to MTN such as Yellow, yellow, Christmas, yellow, yellow, Christmas and his answer was “am not aware”. The defendant said the deductions was by third parties over which she has no control and that the third parties used several means such as auto dialers and cloning devices to generate numbers to address such SMS to the general public. The perpetrators of this practice often utilize very sophisticated spamming technologies designed to circumvent detection”. It is submitted that this defense holds no water. It failed to address how the third party accesses the airtime of plaintiff which is in the exclusive control of the defendant.

It is further submitted, that Exhibit B was written to the defendant asking her to stop the deductions which she ignored. To this it is submitted that the plaintiff being a customer of the defendant and having reported deductions from his account, the defendant is expected to take a serious view of the matter, to report to police and carry out internal investigations. This is because the defendant owes the plaintiff duty of care. Defendant did nothing, See Yesuf V.ACB (1981) ISC 74.98-99: Balogun V NBN (1978) 3SC 155,163- 164.

It is submitted further that the defendant did nothing because he is the beneficiary of the entire deductions. The plaintiff who is the customer of the defendant said #50.00 is being deducted monthly from his airtime which is within the exclusive control of the defendant, and the defendant says she is not aware and that it is the activity of unknown third party over which she has no control, it is submit that by the principle in Egemasi V. Onyekwere 9SC 7 @ 9 which is the beneficiary theory, “these deductions should be placed at the door of the man who benefits from them” being the defendant. The more deductions that are made, the more airtime the plaintiff buys to the advantage of the defendant.

It is submitted that this unknown third part who has no privities of contract with the plaintiff, who plays the promos of the defendant as caller tunez for the plaintiff and who deducts #50.00 as charges for the caller tunez from the airtime or credit of the plaintiff under the exclusive control of the defendant is no other than the defendant. The unknown third party is the defendant see Egemasi V. Onyekwere supra.

The court is urged to resolve issue I in favour of the plaintiff.

On issue 2 it is submitted that the plaintiff discharged the burden of prove. The plaintiff must succeed on the strength of his case and not on the weakness of the defence unless some facts in the defence support his own case as in the instant case. See sections 131-132 and 133 of the Evidence Act 2011. SEE NEPA V. AUWAL {2005} ALL FWLR {Pt 567} 791 CA.@810. It is submitted that the weakness of the defence in the instant case supports the case of the plaintiff. In the face of overwhelming evidence pleaded and relied upon by the plaintiff, the defendant could only say the text messages did not emanate from her. See the statement of defence of the defendant. And that it could be the work of third parties with sophisticated technology over which she has no control. He who alleges, or asserts must prove. It is the duty of the defendant to show to the court, how the third party uses super technology to deduct money from the airtime of the plaintiff which is in the exclusive control of the defendant. This burden was not discharged See University of Benin V. Kraus THOMPSON Organization LTD & ANO {2007} ALL FWLR {Pt 362} 1910 @1929 paras F-G’

It is further submitted, that proof of particular facts lies on party who alleges their existence thus, since it was the plaintiff who asserted that the deductions was by third party using “spam technology” it was her duty to prove same. See Omotosho V. Ojo {2008} ALL FWLR {P+ 408} 389 @ 402, paras F-G. It is evidential burden of proof and rests on the party who asserts same. See OOOM V. POP. {2015} 61 NSCQR {P+2} 984 @ 1038.

According to the counsel, the plaintiff in proof of his case tendered Exhibit B which was letter addressed to defendant to stop the deductions. This proved plaintiff did not just rush to court but approached defendants to stop same. Exhibit A of the plaintiff is the foundation of the case of the plaintiff wherein all the text messages initiating the transaction was sent and saved. This line of evidence was uncontroverted. The defense counsel did not even consider it worthy to question the content of the Exhibit A. It is submitted that the court has a duty to act on the unchallenged and uncontroverted evidence and accept it as true version of the case which the evidence is put forward to support. SEE OLALOYE V. AG; OSUN STATE {2015} ALL FWLR {PT 774} 37 SC @71, PARA HO

It is submitted that the defense cannot be heard to complain of lack of proper foundation before tendering Exhibit A. Written address no matter how elegantly couched cannot take the place of trial and evidence. Counsel raised objection that Exhibit A was not pleaded to which he was referred to all the paragraphs of the statement of claim wherein the plaintiff kept singing “The claimant saved the said text message in his cell phone (and not

his sim card) the same is hereby pleaded”. The said cell phone is Exhibit A; The primary and functional document used in plaintiffs daily transaction which was admitted. The objection was overruled and counsel did not appeal against that ruling. This court is functus officio on the issue of Admission of Exhibit A. Once a court makes an order, it becomes functus officio. SEE UWAIFO V. GOVERNOR OF LAGOS STATE (2008) ALL FWLR (Pt 417}184 @193, PARAS A-B

According to the counsel, EXHIBIT A was tendered and admitted. All through the cross examination of PW1, defendants counsel did not think it wise to ascertain the deadness of Exhibit A which was given to him before being admitted, he raised no question other than that it was not pleaded. He chose to dwell on speculation and conjecture. The court does not dwell on speculation and conjecture. He had opportunity to prove Exhibit A was dead but failed to do so. He, who asserts, must prove. SEE ODOM V. P.D.P SUPRA.

It is submitted that the evidence of PW2 was equally uncontroverted. PW2 is a regular caller of the plaintiff. PW2 told the honorable court that each time he called the plaintiff, all the caller tunez he heard were purely advertorial or promo of the defendant. Are these advertorial and promos of the defendant played by the third party with spam technology? This question is begging for answer and defendant could not answer same. By the beneficiary theory in Egemasi V Onyekwere Supra, the defendant has the answer to the deductions.

It is submitted that Defendant at this time cannot be heard to complain and raise issue of proper foundation on a document ruled admissible by the Hon. Court nor complain of withholding evidence of a document already marked as Exhibit A. The plaintiff tendered the document in proof of his case and it was duty of defendants counsel to destroy it. He did not and chooses to dwell on speculation. Court does not dwell on speculation. SEE SEISOMOGRAPH SERVICE (NIGERIA) LTD V. OGBENI (1976)4SC 101. The court is urged to resolve this issue in favour of the plaintiff.

On issue 3, it is submitted that the plaintiff entitled to damages. The plaintiff is entitled to both specific and general damages. The argument of the plaintiff is that defendant does advertisement of his products and promos to his numerous clients, friends and relatives via the medium of his telephone and charges him at the end of the month. This we submit makes him a stakeholder and hence entitled to arm {a} of his relieves. The word “damages” means the pecuniary compensation obtainable by successful party in an action for a wrong which is either a tort or a breach of contract. SEE MOMODU V. UNIBEN (1997) 7NWLR (PT 512) 325. The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit. See exemplary damages, punitive damages, vindictive damages, even retributory damages. Relied on ELOICHIN NIG LTD $2 ORS V. VICTOR NGOZI MBADIWE (1986)1 ALL NLR (PT1)1 @16 PER OBASEKI JSc.

The court is urged to resolve this issue in favour of the plaintiff and hold that plaintiff is entitled to damages. The plaintiff on the preponderance of evidence has proved this case. This was done via Exhibit A and B and uncontroverted evidence of PW1 and PW2 with the aid of DW1 who is not aware of anything and claimed to be a fraud analyst but refused to give evidence borne out of his analysis but wholly relied on his unproved interactions with customers complaints. No such dealing was shown to the court other than mere words. The court is to resolve issues 1,2 and 3 in favour of the plaintiff, and hold that plaintiff is entitled to his claim.

The defence counsel in his address wherein he formulated issue for determination as:

Whether there was contract between the parties which the defendant breached.
Whether the Plaintiff is entitled to his claims.

On issue 1, it is submitted that the burden of proving and establishing a case lies on the Plaintiff. Referred to sections 131, 132 and 133 of Evidence Act 2011. It is submitted that there was no contract between the parties and there was no breach of anything. It is of note that the same principles of admissibility of e-mails are applicable to text messages. A text message is admitted in evidence on the basis of a proper foundation being laid for its authentication. The proponent of the text message should be able to authenticate it which means that he should be able to identify the text and the person who transmitted the message. It is submitted that the underlying reason for authentication requirement is the possibility that a third party could have used the cell phone to send a text message.

Authentication ensures trustworthiness of the messages because a message can be sent by persons other than the named person. According to the counsel, in Jinena (sic) V UBS AG Bank Inc (2000) 235 F. 3d 131 & 1322-23. The Court found that there was inadequate foundational evidence. The case involved allegation of fraud against Chief Financial Officer as the author of the e-mails. However, there was no substantial or unique information that supported authenticity. It was held that the e-mails were not properly authenticated.

According to the counsel, in proving his case, the Plaintiff tendered a cell phone – Exhibit ‘1’. Exhibit ‘1’ was not put on; there was no MTN Sim card or any Sim card at all as the Plaintiff informed the Court that he removed his Sim Card.

According to counsel, laying of proper foundation as to authenticity is sacrosanct. Plaintiff tendered Exhibit ‘1’ without putting on in the open court the contents of said exhibit 1. Authenticity requires him to put on the gadget and pin point the text messages as alleged with their dates and sender’s name and number/code to enable the court, the counsel, even the officers of the court to see the text messages with their unaided senses in the open court. Even the other text messages as pleaded by the Plaintiff, nobody saw or even identified them. However, the Plaintiff deliberately and with evil intention removed the sim from Exhibit ‘1’ and avoided putting on the text messages.

It is submitted that evidence which could be and is not produced would if produced be unfavorable to the person who withheld it. See Iweka V Federal Republic of Nigeria (2011) AFWLR Pt 588 Pg. 981. All the pleaded text messages were not identified, not available to be read and sim card removed; all of them were mischievously withheld. The counsel queried how the trustworthiness of the text messages and the good/working conditions of Exhibit ‘1’ can be guaranteed when there is no sim card and it was not put on in the open court?

It is submitted that the laying of foundation is sacrosanct and failure to do so, the court had no option than to dismiss the case and the court is urged to so hold in the instant case. See the cases of Akeredolu & Anor V Mimiko & Ors (2013) LPELR. 20532 (CA); Kuba & Ano V Dickson & Ors (2013) 4 NWLR (Pt. 1345) 534.

Finally, it is submitted that there was no contract between the parties which the defendant breached. It is further submitted that the burden of proving that there was a contract was still on the Plaintiff which he had not discharged and the court is urged to so hold and resolve issue No.1 in favour of the defendant.

On issue 2, it is submitted that the burden of proof is always on the Plaintiff and it never shift to the defendant throughout the trial. The issue lies not in the Standard of proof but in the burden of proof. See Lambu V Isyakanu (2012) AFWLR (Pt. 640) Pg. 1306.

According to the counsel, this case borders on electronic evidence. The counsel queried how to know whether there was a contract between the parties. And went on to say that no proper foundation was laid as to ascertain the trustworthiness of what the Plaintiff is claiming. The Plaintiff while proving his case ought to have authenticated or identified the text messages he pleaded one after the other with their precise time and date. The Plaintiff only tendered a dead cell phone; no sim card, not alive, not in use. He question how the contents of the cell phone would have been known since it was switched off. He asked if it is the duty of the Judge to authenticate or identify the text messages as alleged.

It is submitted that however, the defendant in her defence states that the offer with short code “33022” did not emanate from her and will never emanate from her; that her messages to her subscribers emanate from “MTNN” and not from any short code. The Plaintiff never contradicted this defence.

It is submitted that the Plaintiff has proved nothing for this court to grant him the relief sought and the court is urged to resolve this issue in favour of the defendant.

Finally, it is submitted that there is nothing before the court which the court can use to grant reliefs as claimed by the Plaintiff. Indeed the Plaintiff’s case is without merit and unreliable. The court is urged to dismiss the case of the Plaintiff in its entirety.

The defence counsel filed a reply on point of law. He submitted that it is worthy of note that there is no counter claim by the defendant in this matter. Accordingly it is trite that the burden of proof is always on the plaintiff as in this case and that it never shift to the defendant throughout the trial. See Lambu V Isyakanu (2012) 4 FWLR (pt. 640) pg. 1306.

According to the counsel, it is also worthy of note, that this case is fought on the plat form of Electronic Evidence and such evidence has its peculiar nature on how to introduce it in the open court which must be in full compliance with section 84 of Evidence Act. Section 84 of the Evidence Act provides for admissibility of a statement contain in a document produced by a computer. Section 258 of Evidence Act defines “statement” as any representation of fact whether made in words or otherwise.

The documents are capable of being manipulated. The records in computer can the tampered with ease or even changed completely. It is submitted however, that the Plaintiff has never proved anything. “Exhibit A of the Plaintiff is the foundation of the case of the plaintiff wherein all the text messages initiating the transaction was sent and saved”. See paragraph 7.03 of the plaintiff final written address.

It is submitted that the Plaintiff failed woefully to authenticate (certificate) the contents of Exhibit A as the same as the statements pleaded in paragraphs 3, 4, 5, 6, 7 and 8 of the Plaintiff’s further amended statement of claim dated 10/12/2015 and filed on 19/01/2016.

The counsel queried how trust worthiness or genuineness of the contents of exhibit A would be known. How do we Know whether there is a statement or evidence at all in Exhibit A? The law enjoins the Plaintiff to lay the contents of Exhibit A as proper foundation as a compliance for admissibility of computer generated evidence under section 84(2). It is submitted that a witness who desires to tender a piece of electronically generated evidence is required to lay proper foundation for its admissibility

He reaped his submission that laying of foundation as to authenticity of a document is sacrosanct. Relied on kubor & Anor Dickson & Ors (2013) 4 NWLR (pt. 1345)534. And failure to lay the necessary foundation as in this case, the court has no option than to dismiss the case and the court is urged to so hold.

It is submitted that Olaloye V A.G. Ogun State (2015) All FWLR (Pt. 774) 37 SC @ 71 cited by the Plaintiff is not applicable in this case. The plaintiff ought to have authenticated or identified the contents of Exhibit A. That is laying of the foundation. The contents of Exhibit A cannot be regarded as unchallenged evidence.

It is submitted that the case of Uwaifo V Governor of Lagos State (2008) All FWLR (Pt. 417) 1 84 @ 193, para A-B cited by the Plaintiff has no evidential or probative value in this case. What was objected to was non-pleading of Exhibit A which was overruled. The court cannot become functus officio as to the contents of the Exhibit A which no proper foundation was laid as to its aut enticity or identification.

It is submitted that the Plaintiff has proved nothing to warrant him of the granting of his claims. The court is urged to dismiss the case of the Plaintiff.

RESOLUTION OF MATTER:

I have considered the submission of the counsel on both sides. I am of the view that the issues that call for determination are:

Whether there is ac contract between the Plaintiff and the defendant.
Whether the plaintiff has proved his case as to be entitled to the reliefs sought.

It is alleged by the plaintiff that an offer was made to him via text message by the Defendant to subscribe to a ring back tune. He is the owner of MTN NO. 08037964151. On the 8^th day of December at exactly 01:52:24 am, the defendant sent him an offer with the following words: “inspire your callers with inspirational tunes” text 010001 for ‘I have a dream’, 010031 for ‘Amazing grace’, 010063 for ‘I can fly (RKelly). Send text to 4100 N50/sms. He accepted the offer on the same 8^th day of December at 06:26:51a.m without more by subscribing to “I have a dream” coded 010001. The defendant sent him another text message which reads as follows “you have successfully subscribed to MTN Caller tunez at 06:26:52 a.m. Contrary to the offer the defendant made to him and which he accepted and upon which deduction was made from his account, the defendant sent him another text message which reads as follows” sorry you cannot purchase this tune 010001 with tune name MLK Dream and singer name Martin Luther King as the charging failed at 06:26:54.

He went on to say that at exactly 08:40:34 a.m. the defendant sent his message which reads as follows “Y’ellow! caller tunez fee of N50.00 from 2010 12/08 to 2011/01/07 has been deducted. Thank you! Instead of the “I have a dream” the defendant offered to him and which he accepted, till date the defendant entertains his numerous callers and clients spread across with different MTN Adverts while charging him at end of every month. According to him all the messages he received from the defendant were all stored in his phone. This phone was tendered and admitted in evidence.

It trite and now settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”.

In action for contract the existences of facts which the Plaintiff must prove are: The existence of a contract; Performance by the plaintiff or some justification for non performance; Failure to perform the contract by the defendant; and, Resulting damages to the plaintiff. Existence of a contract is proved when the three components of contract which are Offer; Acceptance; and Consideration are proved.

In NJIKONYE ESQ V. MTN NIG COMMUNICATION LTD (2007) LPELR-8743(CA) the court stated

“It is settled law that for a contract to exist there must be an offer, unqualified acceptance of that offer and a legal consideration. There must be a mutuality of purpose and an intention; the two contracting parties must agree. See the cases of: (1) Ajayi-Obe V. Executive Secretary (1975) 3SC p. 1; (2) Dahiru V. Kamale (2005) 9 NWLR (Pt. 929) p. 8 and (3) Odutola V. Papersack (Nig.) Ltd (2006)18 NWLR (pt. 1012) p. 470. One of the fundamental principles of the law of contract is that the parties must reach a “consensus ad idem” in respect of the terms thereof for the contract to be regarded as legally binding and enforceable. There are two types of conditions that can be attached to a contract. They are: (a) a condition precedent, that is the “sine qua non” to getting the thing; or (b) a condition subsequent, which keeps and continues the thing.”

Per OYEBISI FOLAYEMI OMOLEYE ,J.C.A ( Pp. 20-21, paras. C-A )

“The burden of establishing the existence of a term of an agreement rests squarely on the party asserting such a term. See the cases of: (1) Olanlege V. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt. 458) p. 29: (2) Nigerian Bank for Commerce and Industry V. Integrated Gas (Nig.) Ltd. (1998) 8 NWLR (Pt. 613) p.119 and (3) Tsokwa Oil Marketing Co. V. B.O.N. Ltd. (2002) 11 NWLR (pt. 777) p. 163.” Per OYEBISI FOLAYEMI OMOLEYE ,J.C.A ( P. 21, paras. B-C )

“For a plaintiff to succeed in an action for breach of contract, he must establish not only that there was a breach but fundamentally that there was in existence an enforceable contract which was breached. See the cases of: (1) Haido V. Usman (2004) 3 NWLR (Pt. 859) P. 65 and (2) Tsokwa Oil Marketing Co. V. B.O.N. Ltd. supra.” Per OYEBISI FOLAYEMI OMOLEYE ,J.C.A ( P. 21, paras. D-E )

When is a breach said to have occurred. In MTN COMMUNICATION LIMITED v. SIDNEY C. AMADI, ESQ (2012) LPELR-21276(CA) it is stated:

“Simple operation of contract is that where parties voluntarily agree to do an act and one of the parties neglected or defaulted from carrying out or doing what was agreed to be done, then there is a breach of that contract by the party, who neglected or defaulted in performing his or her own side of the contract – and the person responsible for the breach will be liable in damages to the other party. See Obimiami Brick & Stone (Nig) Ltd v. African Continental Bank Ltd. (supra) at 312. It is for this that I agree with the submission of the learned counsel for the Respondent and the conclusion of the learned trial Judge that the Appellant’s act of blocking the Respondent’s phone line was in fundamental breach of Exhibit E.” Per ONYEMENAM, J.C.A. (Pp. 26-27, paras.

Further more it stated:

“A party is said to be in breach of a contract when he acts contrary to the terms of the contract, See Pan Bisbilder (Nigeria) Ltd v. First Bank of Nigeria Ltd (2000) 1 SC 71; Cameroon Airlines v. M. E. Otutuizu (2011) LPELR – SC 217/2004. G-C). see MTN COMMUNICATION LIMITED v. SIDNEY C. AMADI, ESQ (supra)

Even where there is not monetary loss as a result of the breach the innocent party is still entitled to damage. Hence it is stated:

“It is worthy of note however that even when an innocent party does not suffer any monetary loss, he may still successfully sue the faulting party for breach of contract and damages will be awarded to reflect infringement of his legal right. Hadley v. Baxandale (Supra). See MTN COMMUNICATION LIMITED v. SIDNEY C. AMADI, ESQ (supra)

It is the contention of the defendant that there was no contract. The offer did not emanate from her. It is submitted that however, the defendant in her defence states that the offer with short code “33022” did not emanate from her and will never emanate from her; that her messages to her subscribers emanate from “MTNN” and not from any short code. The Plaintiff never contradicted this defence.

It is not contested that contract can be entered into via text massage. Now the contention of the Defendant is that the offer was fraudulent. It did not emanate from then. According to the defence, most of the unsolicited SMS complained of generally emanate from third parties with whom the defendant has no control or contractual relationship with. Such third parties use several means such as auto dialers and cloning devices to generate numbers to address such SMS to the general public. The perpetrators of this practice often utilize very sophisticated spamming technologies designed to circumvent detection. The question which this line of defence did not answer is whether the third parties have access to the money paid to the Defendant by the plaintiff as recharge fees. Does this mean that these third parties deduct money from the customer’s account with the defendant without the defendant’s knowledge and approval? And if the the Defendant has not taken any concrete steps to stop it, the proper inference is that the defendant is aware of it. In EGEMASI & ANOR V. ONYEKWERE & ANOR (1983) LPELR 1042(SC) cited by the counsel to the Plaintiff, the court stated:

“There is no direct evidence as to who carried out this alteration, a despicable and criminal act of the worst and most heinous dimension. Be that as it may, there can be no doubt that, this act must be squarely placed at the doorsteps of the party who stood to benefit from this criminal falsification-in this case, the respondent herein.

Nothing that was argued in that Court could dent the decision of the Court of trial. I am satisfied that the decision of the Court of Appeal was obtained by a dastardly fraud to which the respondent herein was either a direct party or at least a willing one as he stood to gain by the fraud perpetrated. I cannot find words strong enough to deprecate and condemn what happened here.”

It is not the contention of the Defendant that it does not offer the services claimed by the Plaintiff. That is call-back tunes severices or caller tunes services. A Ring back Tone is played by their carrier network to the customer’s callers. It’s that ringing sound the caller hears when he calls or tries to connect to a customer a network carrier. It is a common knowledge that all the network carriers provide this services and all the times it is done through text messages. So even if the Defendant is not the originator of the said massage, the defendant is the ultimate beneficiary of the act. I am prepared to hold that a valid contract can be entered into through text message. It is not the case of the Defendant that a contract of this nature is not entered into via text message.

In EMERGING MARKETS TELECOMMUNICATION SERVICES LTD v. ENEYE (2018) LPELR-46193(CA) it is stated:

In the instant case, notwithstanding that the exemplary damages was claimed, it arose from the action of the appellant accessing the respondent’s mobile number to strangers to be sending unsolicited text messages to the respondent and also through the appellant’s sort code number 30046 where the respondent’s subscription to Foot Bail news was texed to have been successfully renewed when the respondent said he never subscribed to Foot bail news. The respondent pleaded and proved facts, for example Exhibit B1-B67 are the unsolicited text messages sent to the respondent by strangers that are unknown to him. Exhibit B46 is the text message from sort code 30046 sent at 4.28 am telling him that his subscription to Football news was renewed. A text message sent to sort code 30046 by the respondent to stop sending him unsolicited messages on football did not stop but was rather responded by sending him 32 sports adverts and messages within minutes after he had sent the message. These facts pleaded and proved by the respondent were not controverted by the appellant.

See also MTN NIGERIA COMMUNICATION LTD V. BARR. GODFREY NYA ENEYE, Appeal No: CA/A/689/2013 (Unreported) delivered on May 12, 2017

It is clear to my mind that the Defendant offered and the Plaintiff accepted the offer and consequently debited by the Defendant from the money recharge fee of the Plaintiff which is in her custody. There is a contract created by this means.

Did the Plaintiff prove his case? The burden of proof in civil cases lies on the person who would fail if no evidence at all were given or provided on either side to establish a claim or claims. It is also the law that burden of proof in civil cases is discharged on the balance of probabilities and not beyond reasonable doubt which is the burden of proof required in criminal proceedings. See Sections 132 and 134 of the Evidence Act 2011. I do not think it is proper to state that burden of prove does not shift. The plaintiff initially bears the burden of proving facts that, if no rebutting evidence is presented, would allow him to win the case. The burden may then shift to the defendant to prove one or more defenses to the plaintiff’s case.

To prove his case the plaintiff called two witnesses and tendered exhibit exhibits A and B. The exhibit A is the cell phone – Nokia in which he said the text messages he received were stored. According to the defence, “Exhibit A of the Plaintiff is the foundation of the case of the plaintiff wherein all the text messages initiating the transaction was sent and saved” It is submitted that the Plaintiff failed woefully to authenticate (certificate) the contents of Exhibit A as the same as the statements pleaded in paragraphs 3, 4, 5, 6, 7 and 8 of the Plaintiff’s further amended statement of claim dated 10/12/2015 and filed on 19/01/2016. The Defendant is of the view that the Exhibit A is not authenticated and therefore is not genuine or trust worthy. Authentication ensures trustworthiness of the messages because a message can be sent by persons other than the named person. He relied on Jinena (sic) V UBS AG Bank Inc (2000) 235 F. 3d 131 & 1322-23. In EMPERION WEST AFRICA LTD V. AFLON LTD & ANOR (2014) LPELR-22975(CA) the court stated:

“In Blacks Law Dictionary, 9th edition, page 151,”authentication” is defined as:”1. Broadly, the act of proving that something(as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved. ” To” authenticate ” is ” 1.To prove the genuineness of (a thing)… 2. To render authoritative or authentic, as by attestation or other legal formality.” Per JOSEPH TINE TUR ,J.C.A ( P. 75, paras. C-E )

In the case of JIMENA V. UBS AG BANK, INC., 1:07-CV-00367 OWW SKO, AT *7 (E.D. CAL. JUN. 24, 2011).cited by the Defence it is stated:

“Authentication is a “condition precedent to admissibility,” and can by satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

The court went further to say that:

“A party seeking admission of evidence need only make a prima facie showing of authenticity. E.W. French & Sons, Inc. v. Gen’l Portland Inc., 885 F.2d 1392, 1398 (9th Cir. 1989). “The issue for the trial judge in determining whether the required foundation for the introduction of the evidence has been established is whether the proof is such that the jury, acting as reasonable [persons], could find its authorship as claimed by the proponent.” United States v. Smith, 609 F.2d 1294, 1301 (9th Cir. 1979) (quoting Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)). “It then remains for the Trier of facts to make its own determination of the authenticity of the admitted evidence and the weight which it feels the evidence should be given.” Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1301 (9th Cir. 1978).

Now by the Evidence Act, section 258 “document” is defined to include:

(b) any disc. tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and

(e) any film, negative, tape or other device in which one or more visual Images are embodied so as to be capable (with or without the aid of some other equipment) ofbeing reproduced from it; and

(d) any device by means of which information is recorded. stored or retrievable including computer output

Now Sections 85 and 86 of the Evidence Act 2011 have made it clear that the original document itself is primary evidence.

85: The contents of documents may be proved either by primary or secondary evidence.

86(1): Primary evidence means the document itself produced for the inspection of the Court.

The evidence of the Plaintiff leading to the admission of the phone in evidence is :

It is my view that the Phone -exhibit A- by the definition under the Evidence Act is a document. And being a document it is primary evidence. Primary evidence is the document itself -the phone exhibit A which the Plaintiff has tendered. The best evidence of proof of a public document is the production of the document itself and the best evidence of a private document is the production of the document itself. The Best Evidence Rule requires the physical presence of the texting device and is what the Plaintiff has done. The transcripts of the texts or copies of the text may be allowed if the source of the texts has been destroyed. And where both the source of the text and the copies/transcripts of the text are tendered it is in my view, in abundance of caution. The best evidence rule is a legal principle that holds an original copy of a document as superior evidence.

It is my view that it is only when the messages are copied out that they will require an authentication. I hold the view that section 84 of the Evidence Act envisages computed computer generated document and does not apply where the computer itself is produced for inspection. Section 258 of the Evidence Act defined as:

“computer” means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process

Phone the exhibit is a computer. So it is only when what is stored there is reproduced, copied or printed out that the issue of compliance with Section 84 of the Evidence Act will arise.

The Plaintiff testified to the functionality of exhibit and that it is in a good condition. It is also noted that the Plaintiff did not say the he stored the text messages in the sim card but in the phone. In that the fact that the SIM was removed is of no moment.

The defence has every opportunity to contest the functionality of the phone -Exhibit A -but chose not to challenge same.

There is exhibit B -a letter which the Plaintiff said he wrote to the defendant. He said he pleaded a document dated 15/12/10, a letter written by his counsel to the defendant. If he sees the letter he will recognize it. The letter dated 15/12/10 and addressed to the general manager MTN (Nig) Communication Limited is admitted in evidence and marked Exhibit B. this letter was filed in court. I believe it was filed in court to ensure that it is properly served, accepted and received by the defendant. The Plaintiff under cross examination stated that the bailiff went to serve but the defendant refused to collect and so he dropped it for them. He could not recollect when it was it was served. Had it ended I will conveniently conclude that no such letter was served. When he was further prodded he stated that it was necessary to ascertain whether it was served or not because the Defendant picked the letter and started calling him and directing him to channel his complaint to the head quarters and went ahead to supply the head office address for him. Again the Plaintiff evidence on this was not seriously contended. So the conclusion is that though the bailiff who alleged served the letter did not depose to an affidavit of service, the plaintiff has under oath gave instances that point to the fact the letter was received by the Defendant.

I observed that Defence did not address the court or vet his mind to the import of exhibit B. I am of the view that when such letters are received irrespective of its source it should be given an attention and responded to. Moreover, the DW1 was told that even the defendant was written to stop deductions, she ignored them, he replied that MTN attends customers ‘complaints’. This by any means is not a denial that the Defendant got the Plaintiff’s letter. And if the Defendant responds to customers’ complaint there is nothing to show that it responded to this letter dated 15/12/2010. So apart from the Exhibit A, the Plaintiff notified the Defendant of his misgivings in his exhibit B.

One Uzo Arinze Ayoka Esq testified as PW2. He testified that since the 8/12/2010 till date whenever he calls the cell phone number of the claimant he does hear a caller tune which is purely an advertisement for the defendants company. On 10/01/2011, he confronted the claimant and asked him why “he is using his cell phone number to conduct advert for the defendant, it is at this point that the Plaintiff showed him all the transactions he had with the Defendant in respect of a caller tune. Now while in his evidence in chief he did not state the nature of the advert, this was brought out under cross examination when He made a call across to the Plaintiff in the course of the waiting for the Plaintiff to pick up the call he heard a ringing tune which is an advertisement in nature. In the said ringing tune it was saying buy laptop etc. Then he confronted the Plaintiff and asked him if he has become an advertisement agent for the defendant. The evidence of the PW2 regarding what he said he heard when he called the Plaintiff was not seriously shaken.

The DW1 under cross examination when he was asked to note the following advert played on National dailies and televisions and used as a caller tunes in the phone in question. ‘Thank God MTN is 10’ ‘Win your laptop’ ‘Win your share’, ‘Yellow Yellow Christmas’ – and whether all these adverts were played by those who used superior technology as stated in paragraph 5’ of his written deposition, replied ‘none that he is aware of’. Again this not deny any anything. Deduction based on caller tunes is not strange to the activities of the Defendant. In MTN NIGERIA v. ANENE (2018) LPELR-44447(CA) the court observed:

“Learned counsel for the appellant has also submitted that the appellant was not cross-examined on the authorship of Exhibits 3A -L despite the pleading and evidence of the appellant that the appellant did not at any time after 30th May 2014 deduct N50 from the respondent for caller tunez. I am in complete agreement with counsel for the respondent that this is of no moment. The pleading and the statement on Oath of the appellant on this, fly out in the face of the documentary evidence emanating from the appellant, clearly showing that despite the alleged de-activation, it continued to charge the N50 from the respondent’s air time.

It is my finding that there is a contract. This contract was breached by the defendant when the particular ring back tune it offered which accepted was not played. The services paid for by the plaintiff was not rendered instead the consideration provided by him was used and is still been used to the benefit of the defendant and its other partners/customers who have nothing to do with the Plaintiff. The law frowns at robbing Peter to pay Paul

In the circumstance:

The defendant is ordered to render account of all monies realized from 8^th December 2010 till date , and pay the Plaintiff his due having run their advert through my phone.
The sum of N3, 000,000 (Two Million Naira) being damages for this corporate exploitation, extortion and compensation for using his line to run their numerous adverts at his cost and to his vexation and annoyance, and for breach of contract.
To credit to his account the whole N50.00 Naira monthly deducted from his account from December 8^th 2010 till this suit is determined.
To render an unreserved apology to the Claimant.

I so hold.