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MTN NIGERIA COMMUNICATIONS LIMITED V. MR. GANIYU SADIKU (2013)

MTN NIGERIA COMMUNICATIONS LIMITED V. MR. GANIYU SADIKU

(2013)LCN/6396(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of July, 2013

CA/AK/139/2011

 

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

MTN NIGERIA COMMUNICATIONS LTD. Appellant(s)

AND

MR. GANIYU SADIKU Respondent(s)

RATIO

WHETHER OR NOT APPEALS ARE STATUTORILY REGULATED

Regarding the competence of the appeal, it is trite that appeals are statutorily regulated. To this end an appellant can either appeal as of right or with the leave of court. By the provisions of section 241(1)(a) of the Constitution:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance…”
The decision being appealed against in the instant case is viewed by this court to be a final decision, thus the leave of either the lower court or of this court is unnecessary. It is immaterial that the grounds contained in the appeal are either on facts alone or on both facts and law. Section 242(1) is subject to section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended in that the former section deals with other instances not covered by the latter. This is to say that any other subject matter not covered by section 241(1) of the Constitution (supra), the aggrieved person may need to seek the leave of either the Federal High Court or the State High Court, as the case may be or of this Court as circumstances may warrant. See Nigerian Lab. Corp. & Anor vs. Pacific Merchant Bank Ltd. (2012) LPELR-7859(SC); Obaseki Iyawere & Anor. vs. Andrew Omoh & Anor. (2011) LPELR-8830 (CA); and Ogumka vs. CAC (2010) LPELR-4891(CA). PER JOMBO-OFO J.C.A.

THE BURDEN OF PROOF IN AN ALLEGATION OF NEGLIGENCE

The law places the burden of proof of negligence on the party alleging it. In the instant appeal the respondent pleaded negligence against the appellant which allegation was denied by the appellant. As enunciated in Julius Berger (Nig) Plc. vs. Godfrey Nwagwu (supra) in order for the claimant to obtain judgment he must particularize the items of negligence in his statement of claim. That is to say the claimant must also prove particulars. See also A.G. Leventis (Nig.) Plc. vs. Akpu (2007) All FWLR (Pt. 388) 1028; and Order 25 Rule 5(1) of the High Court Civil Procedure Rules of Ondo State which provides that:
“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleading.”
Further in the case of Niger Mills Co. Plc. vs. Agube (2008) All FWLR (Pt. 427) 86 at 112 paragraphs E-G, the court held:
“In an action for negligence, it is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant. What ought to be done in such pleadings by a plaintiff is to state the facts showing the duty of care, itemizing the particulars of negligence and bringing out by those facts the fault or guilt of the defendant.”PER JOMBO-OFO J.C.A.

THE PRINCIPLE OF UBI JUS IBI REMEDIUM

It has been held in a long line of cases that where there is a right there is a remedy (Ubi jus ibi remedium). See Aliu Bello & Ors. v. Attorney General of Oyo State (1986) (1986) 5 NWLR (Pt.45) 828 at 890; A. G. Lagos State v. Eko Hotels Ltd (Pt. 1011) 378; Amaechi vs. INEC (2008) 5 NWLR (pt. 1080) 227 SC. PER JOMBO-OFO J.C.A.

WHETHER OR NOT A PERSON WHO HAS SUFFERED A LEGAL INJURY IS ENTITLED TO A REMEDY

I did state a while ago that where there is a wrong there ought to be a remedy. Based on the principle thus stated, once the court is satisfied that a person has suffered a legal injury as in this case, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or statute. Underlying this is the pronouncement of Oputa, JSC. in Bello & Ors. vs. A. G. Oyo State (supra) wherein he held that:
“If from the facts available before the court it is satisfied that:
i. The defendant is under a duty to the plaintiff;
ii. That there was a breach of that duty;
iii. That the defendant suffered legal injury;
iv. That the injury was not too remote, it will surely provide a remedy…”
See also Oyekami vs. NEPA (2001) FWLR (Pt. 34) 404 at 436; and Florence Labode vs. Dr. Godfrey Otubu (2001) FWLR (pt. 43) 207 or (2001) 3 SCNJ 1 at 25 relied upon by the learned counsel for the respondent. PER JOMBO-OFO J.C.A.

CORDELIA IFEOMA JOMBO-OFO J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 25th March, 2009 and issued 11th March, 2010 and Statement of Claim dated 4th March, 2010 and filed on a date that is not legible, the plaintiff hereinafter referred to as the respondent commenced an action in suit nos. AK/83/2010 against the defendant hereinafter referred to as the appellant in the Ondo State High Court of Justice sitting at Akure for the following reliefs:
a. AN ORDER OF FORFEITURE by the defendant of the lease agreement between the plaintiff and the defendant in respect of the plaintiff (sic) land situate and being at 23, Isinkan Street, Akure, Ondo State, Nigeria for fundamental breach by the defendant of the condition of the lease to keep plaintiffs land in good condition.
b. AN ORDER directing the defendant to vacate and give up possession of the plaintiffs land situate at No. 23, Isinkan Street, Akure, Ondo State for fundamental breach by the defendant of the condition of the lease to keep the plaintiffs land in good condition.
c. A PERPETUAL INJUNCTION restraining the defendant either by itself, agents, or servants from further polluting of the plaintiff’s land situate and being at No. 23, Isinkan Street, Akure, Ondo State, Nigeria.
d. The sum of twenty million naira (N20,000,000) as general damages for negligence.
The appellant on his part filed its statement of defence and the respondent filed a reply to the appellant’s statement of defence.
Pleadings having been filed and exchanged the case proceeded to trial with the respondent testifying on his behalf and tendering 6 exhibits marked Exhibits A-F respectively. The appellant called one witness and tendered one exhibit marked Exhibit G. After taking addresses from the parties’ counsel, the trial Judge in a considered judgment delivered on 17th of October, 2011 granted all the reliefs of the respondent except that he awarded the sum of N50,000 as general damages. Being dissatisfied with the judgment, the appellant filed a notice of appeal on 20th October, 2011 containing five grounds of appeal.
In compliance with the rules of this court, the parties filed and exchanged briefs of argument. The appellant’s brief settled by ABIOLA OLAGUNJU ESQ., dated 13th March, 2012 and filed 14th March, 2012 was deemed properly filed and served on 20th September, 2012. Also the appellant’s reply brief dated 10th October, 2012, filed 18th October, 2012 was deemed properly filed and served on 5th February, 2013. The respondent’s reply brief settled by CHRIS MBAJIAKA ESQ. is dated and filed 20th September, 2012.
At the hearing of the appeal on 30th April, 2013 KINGSLEY OSIGWE ESQ. for the respondent while adopting and relying on their said brief urged the court to dismiss the appeal. He also informed the court that he raised and filed a Notice of Preliminary Objection dated and filed 20th October, 2012.The argument thereon was incorporated in their brief.
ABIOLA OLAGUNJU ESQ. for the appellant adopted and relied on their respective briefs and urged the court to dismiss the preliminary objection and to allow the appeal.
FACTS
The summary of the facts leading to this appeal is like this:
The respondent who is the owner of the property situate at No. 23 Isinkun Street, Akure, Ondo State, on or about the 17th of July, 2007 leased part of the property measuring 225 square metres for a period of ten years to the appellant. The said appellant used the leased portion to build a base station site for the provision of telecommunications service in consideration of the sum of N2, 777,777:77k (Two Million, Seven Hundred and Seventy Seven Thousand, Seven Hundred and Seventy Seven Naira, Seventy Seven Kobo) only. Upon payment of this amount the appellant took possession of the lease on 1st August, 2007 and built its Base Station which included a noiseless generator and a storage tank for diesel to power the generator. At some point the respondent claimed that his water well became polluted by diesel which was escaping from the storage tank. The appellant on its part denied the possibility of diesel escaping from its storage tank which it claimed to have been built underground and according to the specification of the Nigerian Communications Commission and World Health Organization.
Having raised a preliminary objection, it is necessary to resolve it first before delving into the merits of the appeal if need be. The grounds of the objection are that:
1. The appellant failed to obtain the leave of the court below, or the leave of this honourable court of appeal on grounds 1, 2, 3, 4 and 5 of the notice of appeal which grounds are either of facts of one or of mixed law and fact in accordance with section 242(1) of the Constitution of the Federal Republic of Nigeria 1999.
2. Ground 1 of the notice of appeal is vague, general in terms and disclosed no reasonable ground of appeal and therefore offends order 6 Rule 3 of the Court of Appeal Rules 2011.
In his contention on the foregoing grounds, the learned counsel for the respondent referred the court to the provisions of section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to simply as the Constitution) as well as the cases of Aqua vs. Ondo State Sports Council (1988) 5 NWLR 392 at 410; Ukpong v. C.F.E.D. (2007) MJSC. 18 ratio 3; Okwuagbala v. Ikwueme (2010) 11-12 MJSC. 177 ratio 3; Mrs. Matilda Aderonke Dairo v. Union Bank of Nig. Plc. (2007) 11 MJSC. 74 ratio 6; Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555; and Ogbechie v. Onochie (1996) 2 NWLR (pt. 26) 484 or (1986) 7 NSCC 443.
He argued that all the appellant’s grounds of appeal and the issues for determination are of facts alone or of mixed law and facts and that the appellant in contravention of section 242(1) of the Constitution did not obtain the leave of either the court below or of this court.
While referring to ground 1 of the notice of appeal, the learned counsel for the respondent also contended that it is vague, general in terms and disclosed no reasonable ground of appeal and therefore offends Order 6 Rule 3 of the Court of Appeal Rules, 2011. He cited the case of CBN v. Okojie (2002) FWLR (pt. 103) 349 at 357.
Going further the learned counsel for the respondent argued that ground 1 of the notice of appeal together with issue no. 3 of the appellant’s issue for determination show the ground is either of facts alone or mixed law and fact. See Francis Shanu vs. Afribank Nig. Plc (2000) 10-11 SC. 1 at 9. It was also his submission that this court cannot resolve the issue raised in ground one of the notice of appeal and issue 3 of the appellant’s brief of argument being that they questioned the evaluation of facts or otherwise of tort of negligence of the appellant by the trial court. He urged the court to strike out ground 1 of the notice of appeal together with issue 3 for determination. Counsel opined that grounds 2 and 3 of the notice of appeal are grounds of mixed law and facts while ground 4 is purely a ground of fact and therefore incompetent. Court to strike out grounds 1, 2, 3 and 4 of the notice of appeal and issues 1, 2 and 3 of the issues for determination as the leave of court below or leave of this honourable court was not first obtained by the appellant.
In his reply brief of argument where he reacted to the preliminary objection of the respondent, the appellant argued pursuant to section 241(1)(a) of the Constitution that the decision being appealed against in the instant appeal is a final decision, thus the leave of the lower court or of this Honourable court is unnecessary before filing an appeal against the said decision. See Total Int’l Ltd. vs. Awogboro (1994) 4 NWLR (Pt. 337) 147 at 160. Counsel said that section 242(1) of the Constitution is subject to section 241 supra and that the cases cited by the respondent to support his argument are inapplicable here. Further in his reply the learned counsel for the appellant submitted that he did not argue Ground 1 of the Notice of Appeal as 3rd issue for determination in its brief of argument and that issues for determination are formulated and argued from a ground or grounds of appeal.
Contrary to being vague, the appellant’s counsel submitted that ground one of its notice of appeal is valid in that it conveyed the grouse of the appellant against the judgment of the lower court. Also the said ground has a particular which is clear and relevant to the complaint of the appellant against the judgment of the lower court. Counsel cited the authorities of Nwakodo v. Ohajuruka (2010) All FWLR (Pt. 511) 849 at 846 paras A-C; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 156; and Saraki v. Kotoye (2001) 48 WRN 1 at 26.
The learned counsel for the appellant in further submission said that a preliminary objection can only be filed against the hearing of the appeal and not against one or more grounds or issues. He said that preliminary objections are filed only to contend that the appeal is incompetent. Consequently, if it succeeds that would be the end of the appeal. He stated further that it is settled law that a preliminary objection to the competence of a ground of appeal should be by motion on notice before the hearing of the appeal so that arguments on it can be heard by the court. Counsel relied on the case of Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285 at 287; and Bank of the North Ltd. vs. Akintoye (1999) 12 NWLR (pt. 631) 392. It is against this backdrop that counsel urged the court to hold that the respondent was in serious error to have filed preliminary objection against grounds 1, 2, 3, 4 and 5 of the notice of appeal.
On the authority of N.I.T.E.L. v. Jattau (1996) 1 NWLR (Pt. 425) 392 at 399 the counsel for appellant urged that the respondent’s issue 1 is incompetent arguing that it does not relate to any of the grounds of appeal. That it is wrong to formulate an issue to encompass the preliminary objection rather when a counsel files a notice of preliminary objection, the normal practice is to adduce arguments in support of the preliminary objection and the counsel will then formulate issues in relation to the grounds of appeal. He urged the court to strike out issue 1 as formulated by the respondent’s counsel. The appellant’s counsel further submitted that the purported Notice of preliminary Objection filed by the respondent offends Order 7 Rule 1 of the Court of Appeal Rules, 2011 and therefore is incompetent. He finally urged the court to discountenance the preliminary objection for being unmeritorious and strike out the Notice of Preliminary Objection for constituting an abuse of court process.
The first hurdle to be cleared here is the contention of the learned counsel for the appellant regarding the competence of the respondent’s Notice of Preliminary Objection which he holds to offend Order 7 Rule 1 of the Rules of this court.
For purposes of clarity Order 7 Rule 1 (supra) provides:
“Every application to the court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.”
It is clear that the respondent filed a Notice of Preliminary Objection simpliciter as opposed to a notice of motion supported by affidavit. A look at Order 10 of the Rules of this Court which specifically provides for Notice of Preliminary Objection stipulates under Rule 1 thereof that:
“A respondent intending to rely upon a preliminary objection to the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
The form to be adopted in the filing of the Preliminary Objection is as in Form 10. See the left column of Order 10 Rule 1 (supra). The Notice of Preliminary Objection filed by the respondent as it is before us is in substantial compliance with the specific provision of Order 10 Rule 1, (supra). Besides, by Rule 3 of the same Order 10:
“If the respondent fails to comply with this Rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.”
The operative word in the foregoing is “may”. Thus if the respondent has actually not complied with the expressed provision regarding the filing of the Notice of Preliminary Objection, the court may or may not entertain the objection. In the instant appeal we are of the view that the respondent complied with the specified provision for the filing of his Notice of Preliminary Objection hence the same was entertained by the court. The said Notice of Preliminary Objection dated and filed 20th September, 2012 is therefore competent before the court.
Regarding the competence of the appeal, it is trite that appeals are statutorily regulated. To this end an appellant can either appeal as of right or with the leave of court. By the provisions of section 241(1)(a) of the Constitution:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance…”
The decision being appealed against in the instant case is viewed by this court to be a final decision, thus the leave of either the lower court or of this court is unnecessary. It is immaterial that the grounds contained in the appeal are either on facts alone or on both facts and law. Section 242(1) is subject to section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended in that the former section deals with other instances not covered by the latter. This is to say that any other subject matter not covered by section 241(1) of the Constitution (supra), the aggrieved person may need to seek the leave of either the Federal High Court or the State High Court, as the case may be or of this Court as circumstances may warrant. See Nigerian Lab. Corp. & Anor vs. Pacific Merchant Bank Ltd. (2012) LPELR-7859(SC); Obaseki Iyawere & Anor. vs. Andrew Omoh & Anor. (2011) LPELR-8830 (CA); and Ogumka vs. CAC (2010) LPELR-4891(CA).
The case of Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 cited by the learned counsel for the respondent is distinguishable from the instant appeal in that it dwelt on appeal in an interlocutory decision of the High Court involving facts or mixed law and facts as well as appeals in final decisions of the High Court in “double appeals” involving facts or mixed law and facts in the circumstances of which leave ought to be obtained.
I am satisfied that the decision in suit no. AK/83/2010 is a final decision of the Ondo State High Court for which the appellant does not require the leave of the trial court or of this court to appeal against pursuant to the provision of section 241(1) of the Constitution. It is immaterial that the grounds of the appeal are either of facts alone or of mixed law and facts.
The other objection of the respondent is that ground one of the notice of appeal is vague, general in terms and disclosed no reasonable ground of appeal and therefore offends Order 6, Rule 3 of the Court of Appeal Rules, 2011. For ease of reference Order 6 Rule 3 (supra) reads as follows:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.”
In CBN vs. Okojie (supra) the apex court held that vague ground of appeal is one concluded in a manner without explicit standard for understanding, or absence of definition of complaint or non particularization or irrelevant particulars added to the ground of appeal.
Ground one of the Grounds of Appeal reads thus:
“GROUND ONE
The learned trial judge erred in applying strict liability.
PARTICULARS OF ERROR
1. The case made out by the plaintiff is negligence on the part of the defendant.”
There is no denying the fact that ground one and its particulars as they appear above seem vague and devoid of particularization. However, it still conveys the definite complaint of the appellant in relation to the judgment appealed against. The respondent has placed nothing before the court to suggest that he did not understand the complaint being made by the appellant or that he was misled by the paucity of particulars in respect of the said ground one. I shall therefore allow the said ground one and it is so allowed.
In the light of my findings above, I hold that the appeal as constituted is competent having regard to the appropriate provisions of the law. The preliminary objection therefore fails and is accordingly dismissed. Regarding the formulation of issues in relation to ground or grounds of appeal, the learned appellant’s counsel is of the contention that issue (a) as formulated by the respondent is incompetent as the said issue does not relate to any of the grounds of appeal. In the case of N.I.T.E.L. v. Jattau (supra at page 397 ratio 10 this court held:
“Any issue formulated in the brief of argument by a counsel must relate to the grounds of appeal and it is very wrong for the counsel to formulate an issue to encompass a preliminary objection filed. When a counsel files a Notice of preliminary Objection, the normal practice is to proffer arguments in support of the preliminary objection and thereafter counsel will then formulate issues in relation to the grounds of appeal and argue them. If the appellant files a reply brief, he can reply to the preliminary objection and any other matter that arose from the respondent’s brief. (Emphasis mine)
Issue (a) as formulated by the respondent’s counsel reads as follows:
“Whether the appeal is competent having regards to the failure of the appellant to obtain the leave of the court below or the leave of this honourable court, on grounds of appeal which are either of facts alone or of mixed law and facts in accordance with section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999.”
Issue (a) as it stands, is obviously a repetition of ground 1 of the respondent’s preliminary objection and on the foregoing authority N.I.T.E.L v. Jattau, it is a wrong approach to adopt by counsel for the respondent. The issue stands no chance being that it encompasses the respondent’s preliminary objection which has just been determined.
Issue (a) as formulated for determination by the respondent is therefore struck out.
I shall now proceed with the appeal proper.
Given the appellant’s five grounds of appeal contained at pages 99-102 of the record of appeal, the learned counsel for the appellant has distilled three issues for determination of the appeal. The issues are:
1. Whether considering the state of pleadings and evidence on the record, the learned trial Judge was right to have granted the reliefs of the respondent. (Grounds 2 and 3)
2. Whether the lower court was right to have assumed that Exhibit “A” was the only subsisting Lease Agreement between the parties which was meant to be forfeited and upon which he found the defendant liable for a breach of the implied term.
(Ground 4)
3. Whether the learned trial Judge was right to have made out a case of strict liability for the respondent without allowing the parties to address on it. (Ground 1).
On the side of the respondent, learned counsel on his behalf also formulated three issues for determination of the appeal. However, bearing the fact that issue (a) thereof has just been struck out for being incompetent we are left with two issues and they are:
i. Whether from the surrounding circumstances of this case the learned trial Judge was right in holding the appellant liable in negligence.
ii. Whether from the surrounding circumstances of this case the learned trial Judge was right to have made an order of forfeiture against the appellant.
I believe that the appeal can be determined based on the three issues formulated by the appellant as they encompass the remaining two issues distilled by the respondent. The appeal shall therefore be determined on the appellant’s formulation.
ISSUE 1
The learned counsel for the appellant while making his submission on this issue restated the established principle of law that parties are bound by their pleadings. He relied on the case of Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 553 at 572-573; A.G. Abia State v. A.G. Fed (2006) All FWLR (Pt. 338) 604 at 657, para D. Counsel then proceeded to reproduce paragraphs 6, 7, 8, 9, 10, 14 and 15 of the respondent’s statement of claim as well as his evidence at the lower court. See pages 4-5 and 45-47 respectively of the record. Appellant also while denying liability took time to reproduce paragraphs 2, 6, 7, 8, 11, 13, 14, 15 and 16 of its statement of defence. In the same vein counsel reproduced the evidence of its witness one Mr. Daniel Oluwadare Boboye. See pages 13-15 and 50-52 respectively of the record.
Based on the pleadings of the respondent and the evidence led at the trial the learned counsel for the appellant submitted that there was no cogent and weighty evidence in support of the respondent’s claims before the lower court. According to counsel the respondent pleaded negligence as the cause of action but failed woefully to plead specific particulars of the alleged negligent acts of the appellant. He referred to the case of Julius Berger (Nig.) Plc. vs. Godfrey Nwagwu (2006) 12 NWLR (Pt. 995) 536 at 539-540. He submitted further that the respondent’s statement of claim ran foul of the provision of Order 25 Rule 5(1) of the High Court Civil Procedure Rules of Ondo State. That because the respondent failed to plead negligence with specific particulars and how the appellant acted negligently in its actions on the leased property, the trial court ought to have dismissed his case. See Niger Mills Co. Plc. vs. Agube (2008) All FWLR (pt. 427) 86 at 112 paras. E-G.
In further submission learned appellant’s counsel noted that the only witness for the respondent at the trial court was the claimant alone who did not claim to be an expert. He submitted that this is a case in which expert evidence is necessary to connect the alleged pollution of the respondent’s well to the activities of the appellant on the site in order to establish that the well water was contaminated or polluted by diesel. That this is an area reserved for Geologists of which the respondent did not claim to be one. Upon asking this court to note that as a civil matter, the plaintiff can only succeed by preponderance of credible evidence, the learned counsel of the appellant urged that this issue be resolved in appellant’s favour.
The reaction of the learned counsel for the respondent with regards to the issue in view borders on his contention that at the hearing at the lower court, the respondent was not cross examined on the material evidence of the fact of the unrestrained pollution of the premises by the appellant. Learned counsel submitted that in any case if a witness is not cross examined, an admission of the truth of his evidence by the opposite party is implied. For this submission he referred the court to the cases of R vs. Hart (1932) CAR. 202; and Kosile vs. Folarin (1989) 3 NWLR 1 at 12, ratio 4 where the Supreme Court held that:
“Evidence on material facts which is not contradicted under cross-examination and not rebutted by defence remains unchallenged and must be accepted by the trial judge.” See also Adeyemi vs. Bamidele (1968) 1 All NLR 31; and Nwabuoku vs. Ottih (1961) 1 All NLR 487.
The learned counsel for the respondent also submitted that there is no appeal on the learned trial judge’s finding to wit:- that the damage on the respondent’s land was caused by willful default or neglect of the appellant to act when he was informed of the leakage coming from his land. See page 91 of the record of appeal as well as the case of Omnia Nig. Ltd. vs. Dyktrade Ltd. (2007) 12 MJSC 115 ratio 13 where the pronouncement was made that:
“Where there is no appeal against a finding of fact, an appellate court cannot deal with the matter and cannot disturb such finding of fact or facts not properly brought as well as those not brought before it.” See also Iseru vs. Catholic Bishop (1997) 4 SCNJ 10; Udo vs. Cross River State Newspaper Corporation (2001) 14 NWLR (pt. 732) 116 at 167; and Dabo vs. Alhaji Abdulahi (2005) 7 NWLR (Pt. 923) 181.
Further more in his submission, the learned respondent’s counsel urged us not to disturb the finding of the trial judge where he held thus:
“Where there is tacit acceptance of evidence of pollution on the plaintiff’s property by the defendant the onus now shifts on the defendant to state how the pollution occurred and why he failed to act when he was informed of the leakage coming from the diesel tank placed on plaintiff’s land.” See page 91 of the record.
Finally the learned counsel for the respondent pointed out that at page 91 of the record of appeal, paragraph 4 that the learned trial judge made another finding of fact which there is no appeal on and thus should be held as true. The finding reads as follows:
“The maxim of res ipsa loquitor could also be applied in this case, the default or neglect to act on the part of the defendant raises an inference of negligence to establish a prima facie case. In other words what happened in this case is more consistent as being caused by negligence for which the defendant is responsible than other causes.”
I have taken care to go through the pleadings of both parties as filed and relied upon by them at the trial court as well as the evidence led by them. There appears to be no doubt that the appellant was let into the premises of the respondent from the 1st of August, 2007 for a period of ten years. The lease was for the construction of a cell site for the appellant’s communication services. As a matter of necessity the appellant mounted a generator with a diesel tank to power same. On the part of the respondent he had a water-well within the premises which he claims got polluted by diesel leakage from the appellant’s storage tank and that the leakage was occasioned by the negligence of the appellant.
The law places the burden of proof of negligence on the party alleging it. In the instant appeal the respondent pleaded negligence against the appellant which allegation was denied by the appellant.

As enunciated in Julius Berger (Nig) Plc. vs. Godfrey Nwagwu (supra) in order for the claimant to obtain judgment he must particularize the items of negligence in his statement of claim. That is to say the claimant must also prove particulars. See also A.G. Leventis (Nig.) Plc. vs. Akpu (2007) All FWLR (Pt. 388) 1028; and Order 25 Rule 5(1) of the High Court Civil Procedure Rules of Ondo State which provides that:
“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleading.”
Further in the case of Niger Mills Co. Plc. vs. Agube (2008) All FWLR (Pt. 427) 86 at 112 paragraphs E-G, the court held:
“In an action for negligence, it is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant. What ought to be done in such pleadings by a plaintiff is to state the facts showing the duty of care, itemizing the particulars of negligence and bringing out by those facts the fault or guilt of the defendant.”
Perhaps in fulfillment of the above requirement of the law, the respondent in paragraph 7 of his statement of claim pleaded thus:
“Since the construction of the said storage tank by the defendant, diesel continuously escaped from the storage tank, polluting the entire plaintiff’s land, and the adjourning (sic) neighbours’ land and thereby sterilizing the plaintiff’s land.”
It seems to me that from the foregoing the respondent has pleaded the particulars of the items of negligence to be the diesel storage tank of the appellant built on the land. By also pleading res ipsa loquitor in paragraph 14 of his statement of claim it follows that the respondent is relying on the obvious facts that any reasonable person building a diesel storage tank anywhere would exercise utmost care to avert spillage. Thus the inference to be drawn hereon is that the appellant has placed itself under an obligation to secure the diesel within the confines of the storage tank. Where there is therefore a leakage of diesel from the storage tank it portends a breach of that duty of care on the part of the appellant.
In the case of NPA vs. Rahman Brothers Ltd. (2010) LPELR 8962 which is a decision of this court it was held per Babandi GUMEL at page 19, paras. D-F that:
“…. What is required to succeed in a claim based on the tort of negligence primarily is to prove the existence of legal duty of care and to go further to establish that there was breach of such duty of care consequent upon which damage, injury or economic loss was suffered.”
The question that may be asked at this point regarding the instant appeal is, since it is not in doubt that the appellant built a diesel storage tank be it surface or underground, is there sufficient evidence to satisfy the court that the said appellant failed in its duty of care to prevent its spillage?
The learned trial Judge at page 91 of the record made a profound finding of fact which I totally agree with to wit:
“Even though there is no direct evidence that the defendant used the equipments on the leased land in a negligent way or intentionally to cause damage to the adjourning (sic) land, the alleged damage was caused by his willful default or neglect to act when he was informed of the leakage coming from his land.”
See the case of Shell Petroleum Development Coy. Ltd. vs. Adamkue & Ors. (2009) 14 NWLR (Pt. 1160) 1. The learned trial Judge went on to hold that:
“Even though there is no scientific report coming from the plaintiff to substantiate his claims that his well was polluted with the diesel from the defendant’s land or that it was the diesel that escaped from the defendant’s tank that caused damage, this is an offence of strict liability which does not depend on the plaintiff proving an actual negligence of the defendant or that he has the intent to harm, but is based on the breach of an absolute duty to make something safe. It is also termed absolute or strict liability.
The defendant was clearly in breach of this duty.”
I am agreeable with the finding of the learned trial Judge that the maxim of res ipsa loquitor pleaded also by the respondent could also be applied in this instance. This is because the default or neglect by the appellant to act promptly when he was informed of the leakage raises a prima facie case of negligence on its part. Flowing from this is the fact that the onus of rebutting the inference of negligence shifted at that point to the appellant. I cannot help but draw the conclusion that the unperturbed attitude of the appellant on getting to know of the state of affairs i.e. spillage of diesel leaves a lot to be desired. From the 12th of January, 2009 when the appellant was served the notice of pollution (see Exhibit B) among other such notices/letters to the 28th of January, 2010 when it responded vide its letter admitted at the trial court as Exhibit F is a full one year apart. Appellant’s inaction or default in the circumstances buttresses the belief of the court that it was negligent.
With the onus of rebuttal shifted to the appellant and which onus it was unable to discharge having failed to proffer any explanation as to how the leakage occurred the inference is that it breached its duty to safeguard the diesel. As a lessee, it incumbent on the appellant not only to secure the diesel knowing the risk it poses when it escapes, but it also owes it as a duty to ensure that it kept the premises leased out to it in a good and tenantable condition. Failure to do this is very likely to earn it a liability as it has done in the present circumstance. It has been held in a long line of cases that where there is a right there is a remedy (Ubi jus ibi remedium). See Aliu Bello & Ors. v. Attorney General of Oyo State (1986) (1986) 5 NWLR (Pt.45) 828 at 890; A. G. Lagos State v. Eko Hotels Ltd (Pt. 1011) 378; Amaechi vs. INEC (2008) 5 NWLR (pt. 1080) 227 SC. The fact that diesel escaped from the appellant’s cell site and polluted the water well which serve as the only source of water supply to the respondent clearly establishes the fact that the said respondent has suffered and will continue to suffer damages and hardship if not remedied.
From the totality of the facts of this appeal and the preponderance of the evidence led, I hold the firm view that a case of negligence has been established against the appellant by the respondent. This takes me to the next arm of the issue which is whether the trial court was right to have granted the relief sought for by the respondent.
I did state a while ago that where there is a wrong there ought to be a remedy. Based on the principle thus stated, once the court is satisfied that a person has suffered a legal injury as in this case, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or statute. Underlying this is the pronouncement of Oputa, JSC. in Bello & Ors. vs. A. G. Oyo State (supra) wherein he held that:
“If from the facts available before the court it is satisfied that:
i. The defendant is under a duty to the plaintiff;
ii. That there was a breach of that duty;
iii. That the defendant suffered legal injury;
iv. That the injury was not too remote, it will surely provide a remedy…”
See also Oyekami vs. NEPA (2001) FWLR (Pt. 34) 404 at 436; and Florence Labode vs. Dr. Godfrey Otubu (2001) FWLR (pt. 43) 207 or (2001) 3 SCNJ 1 at 25 relied upon by the learned counsel for the respondent.
With the finding of facts that the respondent suffered legal injury as a result of the negligent act or omission of the appellant and given that the injury he suffered and continued to suffer has been found not to be too remote, he is legally entitled to remediation. In determining the appropriate remedy the court has to consider the remedy sought of it and the remedy awarded to the respondent by the trial court in order to ascertain its appropriateness or otherwise.
The next issue for determination is issue 2 as formulated by the appellant.
ISSUE 2
It seems to me that issue two has been substantially covered under issue 1. However, by way of reiteration it is in evidence that the respondent did not tender any Lease Agreement from which the lower court was to determine the terms and condition of the lease. Exhibit A as it is before the court is a letter of “Offer for Lease of Space on your Property at 23 Isinkun Street, Akure, Ondo State” with ref. nos. T3417 addressed to Mr. Ganiyu Sadiku herein the respondent. In the last paragraph of the letter dated 17th July, 2007 it is stated as follows:
“Kindly also provide photocopies of requisite authorization and/or title documents to the property, to assist us in preparing the Lease Agreement so that same be executed in short course.”
(Emphasis mine).
The letter Exhibit “A” was signed on behalf of MTN NIGERIA COMMUNICATIONS LTD. by one Tayo Ajayi of Zero-Eight-Zero Communications Limited. Exhibit A is clearly not the Lease Agreement.
None was pleaded either. It was therefore a matter of speculation and or conjecture on the part of the trial court to assume that Exhibit A was a subsisting Lease Agreement between the parties. See Olufeagba vs. Abdur-Raheem (2010) All FWLR (Pt. 512) 1033 at 1074 para. C. The respondent failed to place the Lease of Agreement as envisaged by the parties in Exhibit “A”. As noted earlier Exhibit A not being a Lease Agreement does not contain the covenant to be observed by the appellant. Therefore the order of forfeiture made by the learned trial Judge upon the assumption that it is the Lease Agreement meant to be forfeited and upon which he held the appellant liable for a breach of implied term, is wrong. Issue 2 as posited by the learned counsel for the appellant is hereby resolved in favour of the appellant and against the respondent.

ISSUE 3
At paragraph 14 of the statement of claim the respondent pleaded as follows:
“Plaintiff pleads res ipsa loquitor. The facts of the pollution of the plaintiff’s land speak for themselves. The underground storage tank and the diesel that continuously escaped there from are under the control, and management of the defendant, and the pollution with the attendant sterility of plaintiff’s land would not in the ordinary course of things have happened without negligence on the part of the defendant.”
The grouse of the appellant herein is that the learned Judge at page 91 of the record rightly found that there is no direct evidence that the appellant used the equipments on the leased land in a negligent way or intentionally to cause damage to the adjoining land. Curiously the learned Judge who had found that the appellant was not negligent raised the issue of strict liability without affording the parties opportunity to address on the issue. Counsel opined that it was patently wrong for the learned trial judge to have raised the issue of tort of strict liability. He relied on Ogundele vs. Agiri (2010) All FWLR (Pt. 507) 1 at 28. Learned appellant’s counsel went further in his contention to say that for the learned trial Judge to have raised the issue of strict liability suo motu without calling for input from the parties’ counsel, thereby entered the arena and breached the principle of fair hearing and that this prejudiced the case of the appellant and caused serious miscarriage of justice.
On the part of the respondent’s counsel all that he had to say pertaining to the issue of strict liability is that though he did not expressly use the words “strict liability”, the evidence before the court however supports application of the doctrine by the trial judge. The evidence of the respondent at the trial court was not subjected to cross-examination.
In resolving the foregoing issue, I need to state that the stance of the law is that no court should make a case for any of the parties. In other words a party has to within the limits of the law, make and rely on the strength of its own case. See the cases of Ojo v. Adejobi & Ors. (1978) 3 SC (Reprint) 47; Nwachukwu & Ors. v. Dimgba & Ors. (2009) LPELR- 8414 (CA); Fagbenro vs. Arobadi (2006) 7 NWLR (Pt. 978) 172; and Somaco Enterprises Ltd. vs. New Nigeria Bank Plc. (supra) at page 214 paras. C-E where it was held:
“A court cannot play a role whereby it will take upon itself the duty of asking probing and searching questions or playing any role with a view to rendering assistance to any of the parties in a case before it. This is because it is not its duty to start making out a case for any of the parties. Any court or tribunal which does that will be descending into the arena.” See also Okwejiminor vs. Agbekaji (2008) All FWLR (Pt. 409) 405 at 447, paras. E-F. Admittedly the learned trial Judge at page 91 of the record rightly found that there is no direct evidence that the appellant used the equipments on the lease in a negligent way or intentionally to cause damage to the adjoining land. It is on record that notwithstanding the above finding of facts that the learned trial Judge, based on the circumstances of the case found the appellant negligent by default. See same page 91 of the record where the trial Judge stated thus:
“Even though there is no direct evidence that the defendant used the equipments on the leased land in a negligent way or intentionally to cause damage to the adjourning (sic) land, the alleged damage was caused by his willful default or neglect the to act when he was informed of the leakage coming from his land.”
In construing the foregoing it can be seen that the learned trial Judge has tried to show that even if the appellant was shown not to have been intentionally negligent, the fact that the diesel that caused pollution of the water well was under its control, makes the said appellant strictly liable for damages caused by the spillage. Strict liability as is applied in the instant appeal is rooted in Ryland vs. Fletcher (1866) L.R. 1 Ex. 265. The rule herein is that the occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for all the direct consequences of its escape, even if he has not been guilty of negligence. I have had recourse to Shell Pet. Dev. Co. (Nig.) Ltd. vs. Amaro (2000) 10 NWLR (Pt. 675) 248; Machine Umudje & Anor. vs. Shell (1975) 9-11 SC. 155 at 172; and NEPA vs. Alli (1992) 8 NWLR (Pt. 259) 279.
Upon the foregoing authorities it seems to me and I so hold that with or without negligence on the part of the appellant, the said appellant was under duty of care to ensure that there was no spillage of diesel from its storage tank to the extent of polluting the water-well and or causing any form of damage to the vegetation on the land. As enunciated in Ryland vs. Fletcher (supra), the appellant as a person in control of a substance such as diesel which can easily escape and cause damage, is placed under strict liability.
To my mind, bringing to bear the tort of strict liability as was done by the learned trial Judge was unavoidable the same having flown directly from his findings. It had nothing to do with the lower court making a case for the respondent or its jumping into the arena as is contended by the learned counsel for the appellant. Being a consequential offshoot of the findings of facts by the learned trial Judge, he did not need to pause the judgment in order to call on the parties to address him on the tort of strict liability.
I find the circumstances of the instant appeal to be distinguishable from the case of Ogundele vs. Agiri (supra) relied upon by the learned counsel for the appellant. In Ogundele vs. Agiri (supra) at page 28 paras. G-H the Supreme Court held:
“A court should not and ought not to raise suo motu, an issue or issues (although it has discretion to so do) without inviting the parties or their counsel, to address it on such issue or issues. In the instant case, the trial court based its judgment on issues of custody, authenticity and/or discrepancies between exhibits B and B1. These were issues not raised by the parties. The lower court was therefore in error to have raised them suo motu without availing the parties the opportunity to address it on them.”
In the foregoing the issues that arose therein are issues of facts and law and which facts are to be supplied by the parties in their pleadings and evidence, unlike in the instant appeal where given the evaluation of the facts before the trial court it reached the conclusion that the appellant was caught by the law of strict liability. Being an issue of law as well as a pronouncement based on its findings of facts, it does not seem to me that the learned trial Judge as I said earlier on, needed to put the judgment on hold in order to get the parties or their respective counsel address him on it.
On the whole I am of the firm belief that Issue 3 as formulated by the learned counsel for the appellant lacks substance. It is in this event resolved against the appellant and in favour of the respondent.
I shall now delve into the remedy awarded to the respondent by the trial court in order to ascertain its appropriateness or otherwise.
Regarding relief (a) where respondent has sought an order of “forfeiture of the lease”, it is on record that the respondent did not at the trial tender any Lease Agreement from which the court was to decipher the expressed conditions of the lease. This was in spite of his admission under cross examination that a Lease Agreement was actually executed between the parties. See page 47 of the record. The lower court made a finding at page 80 of the record that the respondent did not plead or tender any Lease Agreement which he was asking the lower court to forefeit. Having found this much and rightly too, the learned trial Judge ought not to have granted the relief (a) which to my mind is based on a non-existent Lease Agreement. Granted that there is in existence any such Lease Agreement, the fact that it was not made available to the trial court by the respondent, shows that there was no such term for the appellant to forfeit the lease in case of negligence on his part. Indeed the learned trial Judge erred in law when he construed Exhibit A to be a Lease Agreement when it was clearly stated in the said Exhibit A that a proper Lease Agreement would be executed between the parties. By and large, the non pleading of the purported Lease Agreement renders any evidence led at the trial court concerning its being in existence to be of no value. As rightly observed by the learned appellant’s counsel Exhibit A tendered before the lower court is a letter of offer for the lease which did not contain any covenant to be observed by the appellant. The respondent accepted
the said offer which was followed by a payment of rents for ten years spanning 1st August, 2007 to 31st July, 2017. It was therefore with all due respect an error on the part of the learned trial Judge to have read into Exhibit A, a provision which was not included therein. In Okonkwo vs. Co-Operative & Commerce Bank (Nig) PLC. (2003) FWLR (Pt. 154) 457 at 489 paras. G-H; and Mr. Ignatius Anyanwu & Ors. vs. Mr. Aloysius Uzowuaka & Ors. (2009) All FWLR (Pt. 499) 411 at 429, para. D, where the Supreme Court pronounced thus:
“A document tendered in court is the best proof of the contents of such document and no oral evidence will be allowed to discredit it or contradict the contents thereof except in cases where fraud is pleaded.”
See also the authority of Skye Bank Plc. & Anor. vs. Chief Moses Bolanle Akinpelu (2010) All FWLR (Pt. 526) 460 at 483, paras. A-B.
Though Exhibit A was pleaded in paragraph 3 of the respondent’s statement of claim however no fraud was pleaded regarding the preparation and acceptance of the said exhibit. Contrary to the evidence before it the trial Judge granted a forfeiture against the appellant to forfeit the unexpired period in the lease agreement while the lease was to expire in the first instance on 31st July, 2017 as earlier noted. The order as sought by the respondent in relief (a) of his claim was not only unwarranted but was also an error of judgment by the learned trial Judge to have granted same. In the absence of proof of relief (a) as claimed by the respondent the order of the lower court granting same to him is unwarranted and can therefore not be allowed to stand. The order of forfeiture of the lease agreement thus made against the appellant by the trial court is hereby set aside.
In the same vein relief (b) which I hold to be consequent upon relief (a) cannot stand. Where the basis of relief (a) which is considered to be the main relief has failed, relief (b) wherein the respondent has sought an order of court directing the appellant to vacate or give up possession of the leased portion for a fundamental breach of the purported lease will have nothing to stand on. Relief (b) is hereby set aside.
As regards reliefs (c) and (d) which in the present circumstance seem to me to go hand in hand, they are necessary orders to be made. The respondent under relief (c) is seeking an order of perpetual injunction against the appellant either by itself or its agents from further polluting the land and in relief (d) to clean up and restore to its original state the respondent’s premises. This is because despite the absence of the Lease Agreement there is an implied condition in a lessee/lessor relationship that the lessee should keep the leased property in a good and tenantable condition. It has been established both from the pleadings and the evidence before the court that the appellant committed the tortuous act of negligence against the respondent by causing pollution of the latter’s water well. Consequent upon the established act of negligence against the appellant, the respective orders as made by the trial Judge in respect of reliefs (c) and (d) are hereby allowed.
Having found that the appellant was liable for breach of implied term in the lease agreement as a consequence upon which the respondent suffered injury the learned trial Judge awarded the sum of N50, 000 as general damages to the respondent. The respondent had prayed that he be awarded the sum of N20, 000,000 Million as general damages for negligence. Now the guiding principle in awarding damages is captured in the maxim restitutio in integrum. See Aluminium Manufacturing Co. of Nig. Ltd. vs. Volkswagen of Nig. Ltd. (2010) LPELR-3759 (CA); and Ativie vs. Kabelmetal Nig. Ltd. (2008) 10 NWLR (pt. 1095) 399, or (2008) 5-6 SC (Pt. 11) 47 where it was settled per Onnoghen JSC. at pages 28-29 paras. G-A:
“The principles of assessment of damages for breach of contract is RESTITUTIO IN INTEGRUM- that is in so far as the damages are not too remote, the plaintiff shall be restored, as far as money can do it, into the position in which he would have been if the breach had not occurred.”
Again on the strength of Ogunsakin vs. Edu Local Govt. Area, Kwara State & Ors. (2011) LPELR-8816, on interference with the award of damages of a trial court, this court held as follows:
“An appellate court will not disturb the award of damages of a trial court unless it is convinced that the trial court acted on a wrong principle of law or the amount awarded is so high or low that there was an entirely erroneous estimate of damages.”
See the cases of Okudo vs. IGP (1999) 1 NWLR (Pt. 535) 335; Gbadebo Shittu Olowoake vs. Yekini Lawal (2000) 11 NWLR (Pt. 677) 127 at 151; and Ifeanyi Chukwu Osondu Co. Ltd. vs. Akhigbe (1999) 1 NWLR (Pt. 625) 1.Consequent upon the foregoing principles of law it seems to me that the amount awarded by the learned trial Judge as general damages is on the low side taking cognizance of the length of time the respondent’s family and the other users of the well water have had to contend without the use of the well. It was in the evidence of the respondent that the diesel spillage did not end at costing them the use of their domestic water supply but also caused a sterilization of the land. The gravity of damage and or injury brought about on the respondent’s family and the neighbours who depend on the well for their source of water supply calls for an amount higher than the N50,000 awarded by the learned trial Judge. The said amount ought to be set aside and it is so set aside.
The end product of all that I have said above is that the appeal is allowed in part. The judgment of the High Court of Ondo State sitting at Akure in suit nos. AK/83/2010 delivered 17th October, 2011 is hereby set aside. Thus reliefs (a) and (b) as contained in the statement of claim are hereby not granted. Reliefs (c) and (d) are granted as prayed.
With regard to relief (e) the sum of N1 Million Naira is awarded as general damages for negligence in favour of the respondent and against the appellant.

PRONOUNCEMENT BY:
ALI ABUBAKAR B. GUMEL, J.C.A.: My learned brother Kekere-Ekun, JCA (as he then was) presided over the panel that heard this appeal. He also presided over and participated at the conference leading to the judgment just delivered. He agrees that this appeal be allowed in part and to abide by all the consequential orders of Jombo-Ofo, JCA.

ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege, of reading before now the lead judgment of my learned brother, Jombo-Ofo, JCA.
I agree with all the conclusions. I also agree that the appeal be allowed in part and abide by all the consequential orders.

 

Appearances

ABIOLA OLAGUNJU, ESQ with Miss GBEMISOLA ADEWOLEFor Appellant

 

AND

KINGSLEY OSIGWE, ESQFor Respondent