HELIOS TOWER LIMITED v. MR ISIAKA BELLO & ANOR
(2015)LCN/7960(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of July, 2015
CA/EK/71/2014
RATIO
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN CIVIL CASE
It has been accepted by a long line of decided cases that in a civil case, the burden of proof is generally on the plaintiff. See Section 131 of the Evidence Act 2011, CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS Vs BASSEY EBONG EKO (2008) 6 NWLR (PT.1083) 262, FAMUROTI Vs AGBEKE (Supra) at 13, COP Vs OGUNTAYO (Supra) @ 268. per. ADZIRA GANA MSHELIA, J.C.A.
TORT: NUISANCE; THE DEFINITION OF NUISANCE AND WHICH OF THE PARTIES HAS THE BURDEN OF TO ESTABLISH HIS INJURY
Nuisance has been widely defined as any conduct that interferes and obstructs with the convenience and comfort of another person in the exercise of the use and enjoyment of land or a right attached to it. See: ADEDIRAN VS INTERLAND TRANS. LTD (1991) 11-12 SC 203. It is well settled that a nuisance whether public or private is an injury which confers on the person affected a right to action. In certain circumstances, even an injury to the public may also constitute injury to the individual. The burden is on the individual to establish his injury. per. ADZIRA GANA MSHELIA, J.C.A.
TORT: TORT OF NUISANCE; WHETHER AN ACTION FOUNDED ON INTERFERENCE WITH ENJOYMENT OF LAND MUST BE SHOWN TO BE SUBSTANTIAL
Where an action is founded on interference with enjoyment of land, such as where a plaintiff complains of inconvenience, annoyance or discomfort caused by the defendant’s conduct, the interference must be shown to be substantial. See VANDERPART Vs MAY FAIR HOTEL CO. LTD (1930) 1 CH 138. In view of the findings of the Lower Court it cannot be said that a case of nuisance has been made out by the respondent, the respondent must show actual damage not speculation. per. ADZIRA GANA MSHELIA, J.C.A.
COURT: INTERFERENCE; WHETHER THE COURT OF APPEAL SHOULD INTERFERE WITH THE FINDINGS OF FACT MADE BY A COURT OF TRIAL AND WHEN CAN AN APPELLATE COURT INTERFERE
It is trite principle of law that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. See AKINLOYE VS BELLO EYIJOLA (1968) NWLR 92 and EGBBA Vs OGODO 1984 1 SCNLR 372 at 378, OYEWOLE Vs AKANDE (2009) 13 NWLR (PT. 1163) 119 at 143 Paras E-F, ANYANWU Vs UZUAKWA (2009) 13 NWLR (1159) 445 at 465-467, POPOOLA Vs BALOGUN (2007) 8 NWLR (PT. 1037) 574 at 602. per. ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
HELIOS TOWER LIMITED Appellant(s)
AND
MR. ISIAKA BELLO & ANOR Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ekiti State, sitting at Ado-Ekiti; delivered by A.L. Ogunmoye, J. on the 2nd day of May, 2014 wherein the trial court found in favour of the claimant/1st Respondent herein.
The 1st Respondent herein who was the claimant at the trial court, commenced this action by filing an Amended Writ of Summons and Amended Statement of Claim dated 23rd of January, 2012 claiming against Defendant/Appellant, the following reliefs:-
“(a) A declaration that installation of the transmission mast near the claimant’s residential building at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti by the defendants constitutes a trespass, nuisance and wrongful interference with the claimant’s interest in the use or enjoyment of his property.
(b) A sum of N100 Million being general damages for the nuisance, wrongful interference with the claimant’s interest in the use or enjoyment of his property and imminent negative biological effects caused the plaintiff and members of his family as a result of the installation of mobile phone transmission mast by the defendants’ agents near plaintiff’s residential building situate, lying and being at No.3, Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State.
(c) An order of perpetual injunction restraining the defendants, their agents, servants and privies from operating the mobile phone transmission mast installed near the plaintiff’s residential building situate, lying and being at No. 3, Adebayo Street Behind Dental Centre, Ado-Ekiti, Ekiti State and from further interfering with the plaintiff’s use and enjoyment of his residential building situate, lying and being at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State”.
Parties filed and exchanged pleadings. The case of the Claimant/1st Respondent as could be deduced from the evidence placed before the court are that:-
a. he is the owner of a bungalow building of three bedroom flat;
b. the appellant in conjunction with the 2nd respondent installed a transmission mast besides the said bungalow building which made it difficult for him and members of his family to sleep therein as a result of emission of noise and micro-wave from the transmission mast;
c. that erection of the transmission mast by the appellant and the 2nd respondent was interfering with his use and enjoyment of the said residential building. Consequently, he had to relocate his family to another place and abandoned the said residential building;
d. he tendered various documents particularly his letter of complaint to the regulatory bodies as well as photographs of the transmission site.
The 2nd respondent who was the first defendant before the trial court claimed and the trial court so ruled that it was an independent contractor and ought not to have been joined to this suit. See Page 190 of the record. There is no appeal against this finding.
Appellant on the other hand in his defence stated that it complied with all the conditions precedent to the installation of the transmission mast very close to the 1st respondent’s residential building, having obtained approvals from various regulatory bodies. The trial court found as a fact that the appellant only applied for necessary approvals from various regulatory bodies after the installation of the transmission mast besides 1st respondent’s residential building. See pages 208-209 of the record. After the close of evidence, the trial court ordered the parties to file their respective written addresses. Counsel adopted their respective addresses. Following conclusion of the evidence, the trial court on 2nd May, 2014 rendered Judgment in favour of the claimant/1st Respondent.
Dissatisfied with the Judgment, the 2nd Defendant/Appellant filed a Notice of Appeal on 14th day of May, 2014 containing 6 Grounds of Appeal.
The appellant filed its brief of argument and the 1st Respondent also filed his own brief. The 2nd respondent did not file any brief. At the hearing, 1st Respondent’s counsel abandoned the Preliminary objection filed on 10th day of March, 2015. Both sides adopted their respective briefs of argument.
The appellant in its brief of argument raised the following issues for determination:-
1. Whether the learned trial Judge was right to have held that the Claimant/Respondent adduced enough material evidence to prove that the tort of nuisance had been committed against him by the Appellant. (Grounds 1, 4, and 6).
2. Whether the learned trial Judge was right to have awarded the sum of N2,000,000.00 (Two Million Naira) as general damages in favour of the Claimant/Respondent considering the circumstances of the case and evidence before the court. (Grounds 2 and 3).
3. Whether the learned trial Judge was right to have upheld the application of Nesrea Regulation over and above NCC Act considering the circumstances and the subject matter of the case. (Ground 5).
The 1st respondent on his part formulated two issues for determination thus:-
1. Whether the 1st respondent proved the tort of nuisance against the appellant before the trial court. (Grounds 1, 4, & 6).
2. If the answer to the 1st issue is in the affirmative, whether the 1st respondent is not entitled to damages for the tort of nuisance committed by the appellant against the 1st respondent. (Grounds 2 & 3).
As earlier noted, the learned counsel for the 1st Respondent abandoned the Notice of Preliminary objection filed on 10th day of March, 2015. Having been abandoned, same is hereby discountenanced as well as arguments canvassed in respect of same. I will now proceed to determine the appeal on the issues raised by the appellant in its brief of argument. I will treat issues one and three together, both issues relates to evaluation of evidence, while issue two will be treated separately.
As regards issue one, learned counsel for the appellant commenced his argument by identifying two disputed facts:-
(1) Whether the appellant had committed an act of nuisance against the 1st Respondent.
(2) Whether the Claimant/1st Respondent had suffered damages as a result of the Appellant’s alleged act of nuisance.
Learned counsel submitted that the onus on the Claimant/1st Respondent in the trial court was to adduce sufficient evidence of probative value in proof of his claims that:-
1. The Appellant’s activities amounted to an act of nuisance against the Claimant/Respondent; and
2. The Claimant/Respondent had suffered damages as a result of the appellant’s activities.
Learned counsel contended that the burden of proof rests on Claimant/1st Respondent as plaintiff and must successfully discharge same in order to succeed, in line with Section 131 of the Evidence Act, 2011. Counsel relied on FAMUROTI VS AGBEKE (1991) 5 NWLR (PT. 189) 1 at 13 as well as C.O.P. VS OGUNTAYO (1993) 6 NWLR (PT. 299), 259 at 268 wherein Section 131 of the Evidence Act 2011 was interpreted to mean “He who asserts must prove.” That the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See: MBANEFO V. AGBU (2014) 28 WRN 1 @ 35 and UAC NIGERIA PLC VS SOBODU (2007) 6 NWLR (PT. 1030) at PAGE 389. That the onus of proof in a case of nuisance squarely lies on the shoulders of the plaintiff/1st Respondent who asserts. Reliance was placed on ADEDIRAN & ANOR VS INTERLAND TRANSPORT (1991) 9 NWLR (PT. 214) 155. Learned counsel posed a question as to whether the Claimant/1st Respondent herein sufficiently discharged the burden and answered same in the negative, having regard to the totality of the evidence before the court. He said all through his evidence, the 1st Respondent never led any evidence to show the damage or injury suffered due to the alleged act of nuisance. According to counsel, the central issue of the whole law of nuisance is the reasonableness of the defendant’s conduct. See HONG KONG SYNTHETIC FIBRE V. MONSURU AJIBAWA & ORS (2008) 34 WRN 159 at 171. Counsel further submitted that in determining whether private nuisance has been committed, the court considers one or a combination of factors which he enumerated at pages 6-7 of the appellant’s brief of argument. Counsel applied the said factors to the facts deposed to by 1st Respondent which constituted his evidence appearing at pages 25-26 of the record. On the issue of whether there is physical injury or sensible damage, he said 1st Respondent’s evidence were based on speculations. That 1st Respondent gave evidence as to the information he received from the doctor, but the doctor was not called as a witness. He cited cases of FAWEHINMI VS NBA (1989) 2 NWLR (PT.105) 494 and RAPHAEL EJESIE & ORS VS CHRISTOPHER ANUWU & ORS (2008) 4 SC 167 at 173-174 to confirm position of the law that it is the duty of the Court to consider the evidence produced before it and never to proceed to indulge in speculation as to what might have happened. That the law of private nuisance does not provide for anticipated damage rather actual material damage or interference. See U.T.B OF NIG. VS FIDELIA OZOEMEN (2007) 3 NWLR (PT.1022) 448. Counsel contended that where an action is founded on interference with enjoyment of land, such as where a plaintiff complains of inconvenience, annoyance or discomfort caused by the defendant’s conduct, the interference must be shown to be substantial. Reliance was placed on VANDERPART VS MAYFAIR HOTEL CO. LTD (1930) 1 CH 138.
Learned counsel relying on MOORE VS NNADO (1967) F.W.L.R 156 contended that the acts of appellant are lawful and legitimate acts. He argued that the 1st Respondent failed to lead evidence as to the time of the day when the alleged act of nuisance takes place, the volume of the noise and whether or not the noise was transitory or continuous. As to the role of the Court regarding evaluation of evidence and when appellate court will interfere with such findings, counsel relied on WOLUCHEM VS GUDI (1981) 5 SC 291; ENANG VS ADU (1981) 11-12 SC 25 and IGADO VS THE STATE (1999) 14 NWLR (PT.637) 1. Counsel referred to the findings of the trial court on page 206 Paragraph 2 of the record, Page 206-207 Paragraphs 3-1 and Pages 207-208 Paragraphs 6 & 7 of the record, in contending that the 1st Respondent failed to prove that the activities of the appellant affected him in any way. According to counsel, the 1st Respondent has failed to discharge the burden of proof placed on him by law. He said the appellant need not prove anything in defence and if they do, the court need not consider same. That the trial court cannot approbate and reprobate, neither can it blow hot and cold at the same time. On how burden of proof preponderates, counsel relied on OGWULE ANKPA AGATU CO-OPERATIVE GROUP FARMING SOCIETY V. NIGERIAN AGRICULTURAL CO-OPERATIVE BANK LTD (1992) 2 NWLR (PT.590) 234; BUHARI VS INEC (2008) 9 NWLR (PT.1120) 240 at 241. Also Cited in aid is ODOFIN BELLO & ORS VS MOGAJI & ORS (1978) NSCC 275. It is settled that a claimant must succeed on the strength of his case and not on the weakness of the defence. That with regards to the trespass and nuisance said to have been committed by the Appellant’s Base station and mast, the burden of proof is on the 1st Respondent not the appellant as wrongly decided by the trial court. The law is he who asserts must prove. See: MBANEFO Vs AGBU (Supra). See also ADEKOYE Vs ADESINA (2011) W.R.N 1 per RHODES-VIVOUR, JSC wherein he held at page 42 as follows:
“Judges cannot assist a plaintiff to win his case, because cases are not decided on emotions, sentiment or some misguided consideration. Cases are won on pleaded facts supported by compelling evidence”.
That the trial court had enough evidence to make findings against the 1st Respondent based on his conjectures and dismiss his claims. Counsel urged the court to resolve this issue in favour of the appellant.
In response, learned counsel for the 1st Respondent highlighted the facts that were not in dispute between the parties as revealed by the evidence on record as follows:-
(a) That the appellant installed a transmission mast very close to the residential building of 1st respondent;
(b) That the 1st Respondent’s residential building had been in existence before the said installation;
(c) That the 1st respondent and members of his family were resident in the said building prior to the said installation;
(d) That the 1st respondent and members of his family had to relocate to another place in view of the negative effects of the said installation on the health of the 1st respondent and the incessant disturbance of the 1st respondent’s right to peaceful environment.
(e) That upon the complaint of the 1st respondent to the National Environmental Standards and Regulations Enforcement Agency (NESREA), the agents of the Agency had to seal up the transmission mast;
(f) That approval for the installation of the said transmission mast were obtained after the installation of the transmission mast contrary to the NESREA’s Regulations.
According to counsel, nuisance has been widely defined as any conduct that interferes and obstructs with the convenience and comfort of another person in the exercise of the use and enjoyment of land or a right attached to it. See ABIOLA VS IJEOMA (1970) ALL NLR 569 and ADEDIRAN VS INTERLAND TRANSPORT LTD (1991) 9 NWLR (PT. 214) 155. Learned counsel submitted that an action for private nuisance is available to any person who has an interest in land, the enjoyment of which is detrimentally affected. Reliance was placed on IPADEOLA VS OSHOWOLE & ANOR (1987) 5 SC 376; (1987) 3 NWLR (PT. 59) 18. According to counsel, the learned trial Judge found as a fact that both National Environmental Standards and Regulations Enforcement Agency and National Communications Commission were regulatory agencies that the appellant and 2nd respondent, as telecommunications operators, were answerable to. See page 200 of the record. That Appellant did not appeal against the aforesaid finding of fact of the trial court. It is trite law that a finding of fact against which there is no appeal is binding on the appellant. That the primary objective of NESREA is to see to the enforcement of environmental standards in the country, save the Oil and Gas sectors. Reference was made to Sections 2, 7, and 24(3) of the NESREA Act.
Learned counsel further submitted that the trial court further found as a fact that the NESREA Regulations 2011 which became operational on 28th April, 2011 was applicable to the installation of the transmission mast in dispute. That NESREA Regulations provided for 10 meters set back while the set back according to Exhibit 12 was 7.20 meters. The trial court found and held that the NESREA Regulations in term of setback had therefore not been complied with. According to counsel, the trial court concluded that it was not environmentally safe to have constructed a transmission mast in less than 10 meters to the 1st Respondent’s house by the appellant. See page 205 of the record. Counsel also contended that it is crystal clear from the evidence on record that the appellant flagrantly violated regulation 5(4)(1)(b)(c) of the NESREA Regulations 2011 which provided for a minimum set back of 10 meters from the perimeter wall of a residential premises to the base of the mast tower. That the Environmental Impact Assessment Report (Exhibit 13) which was to be used to predict the environment consequences of the installation of the mast base was never approved before the installation of the mast base station. Counsel also referred to the finding of the trial Judge on page 209 of the record. It was also contended that the construction or installation of the mast base station by the appellant very close to the 1st Respondent’s house was illegal as same was prohibited by law. Counsel referred to the evidence-in-chief of 1st Respondent as contained in his statement on oath on pages 24-26 of the record as regards the negative impacts the erection of the mast base station did to him and members of his family. See also the testimony of CW3 at pages 93-94 of the record. Counsel similarly referred to the evidence of PW1 under cross-examination on page 98 and that of DW3 on page 105 of the record. Counsel maintained that the findings of the trial Judge on pages 209 and 210 of the record were based on the evidence on record. That a finding supported by adequately evaluated evidence as in the instant case cannot be perverse. Reliance was placed on CHIEF M. ASEMO & ORS VS CHIEF TARI ABRAHAM & ORS (2001) 6 SC 154 at 160. Counsel urged the court not to disturb the findings. Reliance was placed on JOSEPH SALIBA VS RODA YASSIN (2002) 2 SC (PT. 1) 15 at 31. He urged the court to resolve issue one against the appellant, and hold that 1st Respondent proved that appellant committed the tort of nuisance against the 1st Respondent.
Under issue 3, learned counsel for the appellant submitted that the learned trial Judge gave preference to the NESREA Regulations 2011 over and above the NCC Guidelines with regards to the subject matter of this case as to the attendant law which applied. According to learned counsel, this position cannot be sustained having regard to the evidence of DW3 (an official of the NCC). DW3’s evidence is to the effect that NCC is the sole regulator of Telecommunications in Nigeria and it is their duty to set standards and not NESREA. That this piece of evidence was never challenged by the 1st Respondent. Counsel contended that going by the Guidelines on Technical Specifications for the installation of Telecommunication Masts and Towers issued by Nigerian Communications Commission on 9th April, 2009, the permissible set back by Section 3(5) is 5 meters from any demised property excluding the fence, as such the allegation of the 1st Respondent that the mast is close to his house cannot be true. He submitted that there was no evidence on record from the claimant to establish the distance between the base station and his property, to know whether or not the Defendant was in compliance with the NESREA Regulations or the NCC Guidelines on Technical Specifications for the Installation of Telecommunication mast. Counsel was of the view that even if NESREA Regulation apply in the instant case, the law cannot be made to have a retroactive effect, given the fact that the telecommunication mast site of the Defendant predates the NESREA regulations, it would be unfair to apply the regulation retroactively. That a statute is deemed retroactive, which takes away or impairs any vested right acquired under existing law or create a new obligation, or imposes a new duty or create a new disability in respect to transaction or consideration already past. See ALEWA VS SOKOTO L.E.C (2008) ALL FWLR (PT.402) 1043 at 1060 Para (F-G) and ADESANOYE VS ADEWOLE (2000) FWLR (PT.14) 2389. He referred to the evidence of DW2 stated in paragraph 7 of his written deposition and Exhibit 13 being the Environmental Impact Assessment Report conducted by the 2nd defendant and contended that the application of NESREA Regulation by the trial court had been applied retrospectively and same did not meet the Justice of the case. Counsel also referred to the provisions of Section 11(5) of the NESREA Regulations 2011 to buttress his contention that no evidence was led as to whether the appellant has been charged to Court by NESREA in line with copious provisions of the regulations. Learned counsel argued that non-compliance or default as the case may be under this provision will best be addressed as a Public Nuisance which by its nature is usually criminal. That once the meaning of a statute is clear, the courts are to give effect to it. Reliance was placed on OJUKWU VS OBASANJO (2004) ALL FWLR (PT.222) 166, OWNERS OF THE MV ‘ARABELLA’ VS NAIC (2008) 11 NWLR (PT.1097) 182 at 210-211, A.C VS O.S.I.E.C (2001) 20 W.R.N 45 and ATTORNEY GENERAL OF ONDO STATE VS ATTORNEY GENERAL OF EKITI STATE (2001) 50 W.R.N.I. He urged the court to resolve this issue in favour of the appellant. Respondent appears not to have responded to this issue.
It has been accepted by a long line of decided cases that in a civil case, the burden of proof is generally on the plaintiff. See Section 131 of the Evidence Act 2011, CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS Vs BASSEY EBONG EKO (2008) 6 NWLR (PT.1083) 262, FAMUROTI Vs AGBEKE (Supra) at 13, COP Vs OGUNTAYO (Supra) @ 268.
Nuisance has been widely defined as any conduct that interferes and obstructs with the convenience and comfort of another person in the exercise of the use and enjoyment of land or a right attached to it. See: ADEDIRAN VS INTERLAND TRANS. LTD (1991) 11-12 SC 203. It is well settled that a nuisance whether public or private is an injury which confers on the person affected a right to action. In certain circumstances, even an injury to the public may also constitute injury to the individual. The burden is on the individual to establish his injury. The question now is: has the 1st Respondent discharged the burden of proof placed on him by law? He asserted, so he has to prove the assertion. I will now examine the pleadings and the evidence adduced before the court. The 1st Respondent pleaded facts in support of his claim that the alleged act of nuisance was committed against him by the appellant. The relevant paragraphs of the pleading are paragraphs 2, 6, 10, 11, 12, 13, and 14 of his Amended Statement of Claim. The appellant responded to these averments in paragraphs 3, 5, 8, 9, 10, 12 and 14 of the 2nd defendant’s Statement of Defence.
The claimant/1st Respondent’s written statement on oath is in line with the pleadings. CW1 on pages 24-26 of the record gave evidence of the negative impact the erection of the mast base station did to him and his family. He testified in chief thus:
“I built my residential building in year 2000 and have been living therein with members of my family since then. My wife and children spend more time at home than office and schools respectively. The transmission mast is interfering with the use and enjoyment of my residential building. I know as a fact that the biological effects caused by exposure to radio/microwave usually emitted by mobile phones transmitting mast is hazardous to humans health. The defendants did not obtain the requisite permit license or approval from the appropriate Government Authority, particularly National Environmental Standards Regulations Agency, Ekiti State Chapter, Ekiti State Environmental Protection Agency before embarking on the installation of the said Mobile Phone transmission mast.
The installation of the mobile phone transmission mast near my residential building is an eyesore and constituted health hazard.
My doctor informed me and I verily believed him on 7th June, 2011 at my counsel law office at about 2.00 Pm that installation of the mobile phone transmission mast can be responsible for cancer especially in children and that people living near same suffer ailment including nausea, loss of appetite and greater tendency to depression.
It is necessary to halt the installation operation of the mobile phone transmission mast near my residential building.
The defendants brought some equipment to the location of the mobile phone transmission mast for purposes of installation. I am finding it difficult to sleep in my residential building while my wife and children rebuke me daily for taking no step to chase away the defendants agents and prevent the operation of the transmission mast.”
Under cross-examination, CW1 maintained that the installation mast was very near to his building and less than 15 meters away. CW2 an official of the National Environmental Standards and Regulations Enforcement Agency (NESREA) stated in his evidence-in-chief that CW1 complained to NESREA in respect of the 2nd Defendant’s mast behind the Dental Centre, Ado-Ekiti. Upon the complaint, the place was visited with the site later sealed-up for non-compliance. Later, there was a joint inspection of the site between his office and the Nigerian Communications Commission official from Abuja. The distance between the mast and the residence was very close. Under cross-examination he stated that he was aware of the joint inspection by NESREA and NCC and he was among the team that inspected the site.
The case for the appellant was put forward by its sole witness (DW1). He stated that the 2nd defendant was an independent contractor and that the 2nd defendant executed its work in line with international best practices and compliance with the necessary regulations. Under cross-examination, he stated that the mast in question was installed in a residential area and he agreed that the house of the 1st Respondent was very close to it. He stated that both NESREA and NCC were regulatory agencies that the 1st defendant was answerable to. DW1, DW3 and DW4 all testified and confirmed that NCC and NESREA are two different regulatory bodies.
The learned trial Judge evaluated the evidence adduced and ascribed probative value to same. I wish to note the findings of fact made by the trial court at page 206 of the record. The learned trial Judge had this to say:-
“It was the claim of the claimant that his doctor informed him that the installation of the mast could be responsible for cancer especially in children, loss of appetite and tendency towards depression. It was further his testimony that it would be necessary to halt the installation operation. He also stated that he was finding it difficult to sleep with his children, also finding it difficult to play outside for fear of developing an ailment as a result of emission of noise and microwave from the transmission mast. There was however no medical report to that effect. I could only hold that the claimant’s case in this regard amounted to speculation. The court is not permitted to speculate or act on speculation. It could only act on cold facts before it. One couldn’t agree more with learned defence counsel that the evidence of the claimant as to imminent negative biological effects of the installation could not be relied upon because he was not an expert in safety and environmental health.
As to the noise level from the mast base station, Regulation 9(3)(b) of NESREA Regulations 2011 prescribed 50 decibels between 6am and 10pm and 35 decibels between 10pm and 6am. It was the evidence of the CW2 that there was no compliance as to noise level. I however find it difficult placing reliance on this piece of evidence in that he did not tell the court the level of non-compliance to the decibels that were involved and how he arrived at the decision. He never told the court that he was a safety expert. There was no evidence of level of noise being generated by the generating sets of the 2nd defendant to know if it was above what NESREA recommended 50 decibels between 6am and 10pm and 35 decibels between 10pm and 6am.”
From the pleadings and the evidence adduced, it is my humble view that the above findings cannot be faulted. The 1st Respondent failed to lead evidence as to imminent biological effects and the level of non-compliance as to the noise. The medical doctor was not called as a witness to testify as to the health hazards associated with mast installation close to residential building. The claimant failed to establish that the act of the defendants constitute nuisance and wrongful interference with his interest in the use or enjoyment of his property. The 1st Respondent has a duty to prove the alleged damages he suffered, but he failed to do so. The whole aim of nuisance is to protect one’s right to peaceful enjoyment of property and damages to that right. The law of private nuisance is designed to protect the individual owner or occupier of land from substantial interference with his enjoyment thereof.
Where an action is founded on interference with enjoyment of land, such as where a plaintiff complains of inconvenience, annoyance or discomfort caused by the defendant’s conduct, the interference must be shown to be substantial. See VANDERPART Vs MAY FAIR HOTEL CO. LTD (1930) 1 CH 138. In view of the findings of the Lower Court it cannot be said that a case of nuisance has been made out by the respondent, the respondent must show actual damage not speculation.
Despite the findings noted above, the learned trial Judge held that appellant committed tort of nuisance for failure to keep the 10 meters distance in respect of installation of mast. At page 209 of the record, the learned trial Judge stated thus:-
“Definitely, the violation of the regulation as to the minimum setback made the installation illegal with its attendant negative health implication on the claimant and members of his household. I know that in any organized society, everyone must put up with a certain amount of discomfort and annoyance from the activities of his neighbours. There was therefore the need for a fair balance to be struck between the 2nd defendant as telecommunication provider and a neighbor who is entitled to undisturbed enjoyment of his property. The standard is that of an ordinary reasonable man. See ABIOLA Vs IJOMA (Supra) @ 573. The claimant was entitled to an environment relatively free of avoidable environmental hazards as contemplated by NESREA Regulations. I hold that the 2nd defendant, by its conduct, had committed the tort of nuisance in the instant case. Though Regulation 11(2) of the NESREA Regulations 2011 provides that a violator of regulation 5 is an offence and attracts Five Thousand Naira (N5,000.00) only or imprisonment of 5 years on both conviction and shall be liable to clean up and remediate the polluted environment, it would not be enough to exculpate the 2nd defendant from liability from the tort of nuisance it had committed against the claimant.”
As earlier noted, respondent failed to prove actual damage suffered by him. The learned trial Judge was therefore in error to rely on the non-compliance and hold that appellant committed the tort of nuisance. The learned trial Judge cannot approbate and reprobate. The court cannot blow hot and cold at the same time. Respondent must show actual damage not one based on speculation. The learned trial Judge based his decision on speculation not on evidence adduced before the court. See: ONUOHA V. STATE (2002) 1 NWLR (Pt.748) 408 @ 424 PARAS D-E.
There is evidence to the effect that the mast was installed close to the house of the 1st respondent. The learned trial Judge agreed with the testimony of CW1 that work actually started on the site in May, 2011 and the NESREA Regulations 2011 which became operational on 28th day of April, 2011 was applicable to the installation of the mast base station in question in that it was at best a new facility and at worst a proposed facility as at 28th day of April, 2011. The NESREA Regulation provided for 10 meters setback while the setback according to Exhibit 12 was 7.20 meters. Contrary to the submission of appellant’s counsel, this finding showed that the NESREA Regulation was not applied retrospectively by the learned trial Judge. On the test of retrospective operation of statute, Ogwuegbu, JSC in ADESAMOYE Vs ADEWOLE (2000) FWLR (PT. 14) 2387, (2000) 9 NWLR (PT. 671) 127 at 165H – 171B held:
“The test of retrospectively of operation is whether there is anything in the Act which indicates that the consequences of an earlier event are changed not for the time before the enactment but prospectively from the time of the enactment or from the time of commencement of the Act. A retrospective statute operates for the future.
It is prospective in character but imposes new results in respect of a past event or transaction where an Act attaches an obligation or disability or imposes a duty as a new consequence, prejudicial in most case, of a prior even, then it can be said to be retrospective.”
Since the regulation became operational before the actual work started, it cannot therefore be correct to say that same was applied retrospectively. The evidence on record clearly showed that appellant failed to comply with 10 meters setback stipulated under Section 11(5) of the NESREA Regulations 2011. The non-compliance constitutes Public Nuisance and is a crime as same is punishable. The remedy is the punishment that may be imposed on the appellant but not in tort where particular damage was not proved. There is nothing on record to show that appellant was charged to court for violating the NESREA Regulations. Accordingly, issues 1 and 3 are resolved in favour of the appellant.
The complaint under issue 2 is whether the learned trial Judge was right to have awarded the sum of Two Million Naira (N2,000,000.00) as general damages in favour of the Claimant/Respondent considering the circumstances of the case and evidence before the court. The award of damages by a court is discretionary and same is to be exercised Judicially and Judiciously. In the instant case, the 1st Respondent sought damages for nuisance and imminent negative biological effects caused by the defendant’s transmission mast. See the reliefs sought by the Respondent as per the Writ of Summons. I wish to note that issue one has been resolved in favour of the appellant. The findings of the learned trial Judge, which was based on the evidence adduced, showed that 1st Respondent failed to prove that he suffered actual damages from the alleged act of nuisance committed by the appellant. The evidence adduced and relied upon by the 1st Respondent was based on speculation. As earlier noted, the fact that evidence adduced showed that the transmission mast was installed close to 1st Respondent’s residence is not sufficient to hold that nuisance has been established. There must be evidence of actual damages suffered by the 1st Respondent which he has failed to prove. The circumstances under which appellate court will interfere with the assessment of damages awarded by the trial court are clearly stated in UAC (NIG) PLC Vs SOBODU (2007) 48 WRN 34 at 55, UBA PLC Vs BTL INDUSTRIES LTD (2004) 18 NWLR (PT.904) 166. An appellate court is normally reluctant in interfering with the trial court’s bonafide exercise of discretion unless in some exceptional cases and one of such exceptions as in this case is where such exercise of discretion was not based on the evidence on record and was therefore perverse. The learned trial Judge was in error to award general damages in favour of the respondent. 1st Respondent’s claim for damages ought to have been dismissed.
The duty of a trial Court is to adequately evaluate the evidence adduced in the case and make appropriate findings of facts in respect of all issues arising in the case and material to the determination of the case.
It is trite principle of law that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. See AKINLOYE VS BELLO EYIJOLA (1968) NWLR 92 and EGBBA Vs OGODO 1984 1 SCNLR 372 at 378, OYEWOLE Vs AKANDE (2009) 13 NWLR (PT. 1163) 119 at 143 Paras E-F, ANYANWU Vs UZUAKWA (2009) 13 NWLR (1159) 445 at 465-467, POPOOLA Vs BALOGUN (2007) 8 NWLR (PT. 1037) 574 at 602. As earlier stated in this Judgment, there is no evidence to support findings of fact made by the learned trial Judge. The finding is perverse. This is a proper case for this court to interfere. The 1st Respondent failed to prove actual damage suffered as a result of the alleged nuisance committed by the appellant. As there is no evidence on record to support the claim, the learned trial Judge ought to have dismissed the claimants’ claim.
On the whole and for the various reasons stated hereinabove, I am of the firm view that this appeal is meritorious and succeeds. Appeal allowed. The Judgment of the Lower Court is hereby set aside. In its stead, I dismiss the claim of the 1st Respondent in Suit No. HAD/159/2011 in the Lower Court. Parties to bear their own costs.
FATIMA OMORO AKINBAMI, J.C.A.: I agree with the conclusion reached by my learned brother, ADZIRA GANA MSHELIA, J.C.A. in the judgment just delivered that the appeal is meritorious and should succeed.
My brief comments are in concurrence with the reasoning and conclusion in the lead judgment, and by way of emphasis.
The Claimant now 1st Respondent at the trial Court, commenced this action by filing an Amended Writ of Summons and Amended Statement of Claim dated 23rd of January, 2012 claiming against Defendant/Appellant the following reliefs:
“(a) A declaration that installation of the transmission mast near the claimant’s residential building at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti by the Defendants constitutes a trespass, nuisance and wrongful interference with the Claimant’s interest in the use or enjoyment of his property:
(b) A sum of N100million being general damages for the nuisance, wrongful interference with the claimant’s interest in the use or enjoyment of his property and imminent negative biological effects caused the plaintiff and members of his family as a result of the installation of mobile phone transmission mast by the defendants’ agents near plaintiff’s residential building situate, lying and being at No.3, Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State.
(c) An order of perpetual injunction restraining the defendants, their agents, servants and privies from operating the mobile phone transmission mast installed near the plaintiff’s residential building situate, lying and being at No. 3, Adebayo Street Behind Dental Centre, Ado-Ekiti, Ekiti State and from further interfering with the plaintiff’s use and enjoyment of his residential building situate, lying and being at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State”.
Parties filed and exchanged pleadings. The case of the Claimant is that:-
a. he is the owner of a bungalow building of three bedroom flat;
b. the appellant in conjunction with the 2nd respondent installed a transmission mast besides the said bungalow building which made it difficult for him and members of his family to sleep therein as a result of emission of noise and micro-wave from the transmission mast;
c. that erection of the transmission mast by the appellant and the 2nd respondent was interfering with his use and enjoyment of the said residential building. Consequently, he had to relocate his family to another place and abandoned the said residential building;
d. he tendered various documents particularly his letter of complaint to the regulatory bodies as well as photographs of the transmission site.
The 2nd Respondent claimed he was an independent contractor. Issues were joined by the parties. The trial Court found that the Appellant only applied for necessary approvals from various regulatory bodies after the installation of the transmission mast besides 1st Respondent’s residential building. After the close of evidence, the trial Court ordered the parties to file their respective written address. They adopted them and the trial Court on May, 2014 delivered judgment in favour of the Claimant/1st Respondent. It is that decision that was appealed to this Court.
The Appellant wants this Court to decide whether the learned trial Judge was right to have held that the Claimant/Respondent adduced enough material evidence to prove the tort of nuisance had been committed against him by the Appellant.
This appeal is premised on whether the tort of nuisance had been committed against the 1st Respondent by the Appellant.
In the case of ADEDIRAN & ANOR V. INTERLAND TRANSPORT (1991) LPELR 88 (SC) the Supreme Court per Belgore JSC, stated: “Nuisance is an act of commission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance, whereas the private nuisance is within the competence of the victim to prosecute civilly, the public nuisance is a criminal matter for prosecution by the Attorney-General.”
The issues canvassed in this appeal have been exhaustively dealt with in the lead judgment by my learned brother ADZIRA GANA MSHELIA, J.C.A. I agree with his reasoning and conclusions reached therein, that there is no evidence to support findings of fact made by the learned trial Judge. The finding is perverse. This is a proper case for this Court to interfere. The 1st Respondent failed to prove actual damage he suffered as a result of the alleged nuisance committed by the Appellant. There is no evidence on record to support the claim, the learned trial judge had no evidence to base his decision on.
I also agree that the appeal has merit and it should succeed.
I dismiss the claim of the 1st Respondent in suit No.: HAD/159/2011. I abide by the order as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I have had the advantage of reading before now the lead judgment delivered by my learned brother, Adzira Gana Mshelia J.C.A. I agree with my Lord’s reasoning and conclusions that the appeal is meritorious and ought to be allowed.
By way of emphasis only, it has to be understood that except in few cases where torts are actionable per se – for instance libel and slander actionable per se, trespass to the person and property and the rule in Rylands v. Fletcher – proof of injury is essential to a course of action in tort. Clerk & Lindsell on Torts, 16th edition, confirms this at para 1-103 thus:
“It is essential to liability that the defendant’s wrongdoing should have caused the plaintiff damage except in torts actionable per se (though if the plaintiff claims in respect of any special damage, he will have to establish causation).”
In the case of nuisance founded on loss of amenity, as in the kind complained of by the claimant/respondent here, it is again stated by the same very authoritative work, Clerk & Lindsell on Torts, at para 1-102, p.64, that:
In nuisance where the claim is laid for loss of amenity, as by noxious fumes, noise and the like, it is necessary to show substantial injury, such as the sensible diminution of comfort according to the modern notions of ordinary comfort of existence.
The respondent himself seemed aware of this onus of him to prove injury suffered by him as a result of the appellant’s act or omissions hence he claimed in his pleading and witness deposition that:
“The transmission mast is interfering with the use and enjoyment of my residential building. I know as a fact that the biological effects caused by exposure to radio/microware usually emitted by mobile phones transmitting mast is hazardous to human health. xxxxxxxxxxxxxxx The installation of the mobile phone transmission mast near my residential building is an eyesore and constituted health hazard.
My doctor informed me and I verily believe him on 7th June, 2011 at my counsel’s Law Office at about 2.00pm that installation of the mobile transmission mast can be responsible for cancer especially in Children and that people living near same suffer nausea, loss of appetite and greater tendency to depression.”
The appellant joined issues with him by denying that he suffered or is likely to suffer any such injuries. It averred specifically in paragraphs 4 and 5 of its statement of defence that its operations cannot and do not cause injury to the respondent; that in some instances masts can be cited on residential building once the building is certified by structural engineer before installation; that installation of mast in residential area has no negative health implications; that the radioactive substances generated by the handset is more harmful that radioactive substances and emissions generated by mast because of the distance to the surface.
The trial judge in his judgment did not think that the claimant/respondent prove the injuries he claimed; he rather held, quite correctly, that on the evidence before him the respondent’s complaints of injury ‘amounted to speculation’ (see page 208 of the records), and added that “The Court is not permitted to speculate or act on speculation. The Court is not permitted to speculate or act on speculation. It could only act on cold facts before it.” That should have been end of case for the respondent. Somehow, His Lordship does not seem to have been guided by this trite position all through his judgment, for he changed course almost immediately thereafter and with due respect, allowed sentiments to becloud his judgment by speculatively holding that because respondent did not keep to statutory regulations in erecting its mast near the respondent’s premises, not minding that the said mast was wholly erected in its own premises, that, to quote his Lordship, “made the installation illegal with attendant negative health implication on the claimant and members of his household” and the 2nd defendant, “by is conduct, had committed the tort of nuisance.” That seems to me a clear case of somersault. In the first place, if the appellant was in breach of penal provisions of statute in carrying out its operations by failing to keep the necessary distance, that is a criminal offence and the necessary sanction is a criminal prosecution by the relevant authorities for the penalty provided by the statute. Injury, and especially substantial injury in the form of injury to health, or annoyance or discomfort of the respondent and members of his household cannot be a matter of speculation, it has to be proved by concrete evidence, which in this case the court had held was lacking. His Lordship’s later conclusion is therefore perverse as it is not based on evidence. It cannot be allowed to stand and is hereby also set aside by me.
I abide by the order for parties to bear this costs as made in the lead judgment.
Appearances
J. D. OlaniyanFor Appellant
AND
Adebayo Adewumi with L. A. Fasanmi Esq., (Mrs.) M. O. Agbadaola and O. Ajomole (Mrs.) for 1st Respondent.
Ezekiel Agunbiade (holding brief) of Yinka Muyiwa for 2nd Respondent.For Respondent
