OYEKANMI & ANOR v. MTN (2020)

OYEKANMI & ANOR v. MTN

(2020)LCN/15283(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/EK/12/2019

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

1. MRS. FLORENCE FOLAKE OYEKANMI 2. PRINCE SAMUEL AFOLABI OYEKANMI APPELANT(S)

And

MTN NIGERIA COMMUNICATION LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT ISSUES FORMULATED IN A BRIEF MUST BE BASED ON THE GROUND OR GROUNDS OF APPEAL FILED BY PARTIES

In Momodu v Momoh (1991) 1 NWLR (PT. 169) 608, Uwais, JSC held; “It has been stated now times without number that issues formulated in a brief must be based on the ground or grounds of appeal filed by the parties. See Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt.161) 130 at p.1.”
Shitta-bey v A.G Federation (1998)10 NWLR (PT570)392 Onu, JSC held:
“It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this Court, must of necessity be limited by, circumscribed, and fall within the scope of the grounds of appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 A-B; Adelaja v. Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 at 148; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. The above proposition is complemented by another, which states that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal vide Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254 and Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Fabiyi V Adeniyi 2000 6 NWLR PT. 662 Pages 532 per Kalgo, JSC:- PER AKINBAMI, J.C.A.

WHETHER OR NOT ISSUES FOR DETERMINATION FORMULATED IN AN APPEAL MUST BE RELATED TO THE GROUNDS OF APPEAL AND THE JUDGMENT OR DECISION APPEALED AGAINST

WHETHER OR NOT IT IS COMPETENT TO FORMULATE MORE ISSUES THAN THE GROUNDS OF APPEAL

Though an issue under the rules of brief writing may encompass one or more grounds of appeal, it is incompetent and inelegant to formulate more issues than the grounds of appeal as such exercise is frowned at and deprecated by this Court. In Nwankwo v. F.R.N [2003] 3 NWLR (Pt.809] 1 at 25 paragraph D-E, this Court per Ekpe JCA said:-
“In the appellant’s Notice of appeal, there is only one ground of appeal, but there are six issues for the determination of the appeal, formulated in the appellants’ brief of argument.
It is an elementary principle in brief writing, issues formulated in a brief must of necessity arise or be related to the grounds of appeal filed. The issues should not be so prolix and proliferate as to be more in number, than the grounds of appeal on which they are related or based … When in an appeal, an issue formulated in the brief of argument is not supported by, or related to any of the grounds of the grounds of appeal filed, such an issue should not be determined by the Court, and should be discountenanced and struck out by the Court.”
See Ibrahim v. INEC & ORS [1999] 8 NWLR[Pt.614] 334; Ishie v. Mowanso (2000) 13 NWLR (Pt.684) 279; Modupe v. The State (1988) 4 NWLR (pt.87) 130. In Abioye v. Afolabi (1998) 4 NWLR (pt.545) 296, it was held “that an issue for determination which is not related to any of the grounds of appeal filed is incompetent and will be discountenanced or disregarded. In the instant appeal, apart from proliferation of the issues, learned counsel for the appellants has failed to tie any of the issues to the sole ground of appeal. The issue of fishing out which of the issues is related to the ground of appeal is now left for the Court. It must be made clear therefore that it is not the responsibility of this Court to search through the issues formulated by parties with a view to tying them to the grounds of appeal.”PER AKINBAMI, J.C.A.

WHETHER OR NOT A GROUND OF APPEAL MUST BE COUCHED IN A WAY AS TO ATTACK THE JUDGEMENT OF A COURT ON THE ISSUE DECIDED BY IT

A ground of Appeal must be couched in such a way as to attack the Judgment of a Court on the issue decided by it. See First Bank of Nig. Plc. vs. May Medical Clinics (1996) 9 NWLR pt.471 pg.195, Folbod Investment Ltd vs. Alpha Merchant Bank Ltd (1996) 10 NWLR Pt. 478 pg. 344, BOSIEC vs. Kachala (2006) 1 NWLR Pt.962 pg.587, Ngige vs. Obi (2006) 14 NWLR Pt.999 pg. 1.
In Saraki vs. Kotoye, (1992) LPELR-3016, Karibi-Whyte JSC held that:-
“It is a well settled proposition of Law in respect of which there can hardly be a departure that the grounds of Appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of Appeal are not formulated in nubibus, they must be in firma terra, namely arise from the Judgment.”PER AKINBAMI, J.C.A.

WHETHER OR NOT LEAVE OF COURT IS REQUIRED WHERE A PARTY SEEKS TO FILE AND ARGUE A FRESH ISSUE NOT CANVASSED IN THE LOWER COURT

It is settled that when a party seeks to file and argue in this Court, a fresh issue not canvassed in the Lower Courts, it must be by leave. Whether the issues pertain to Law or otherwise, leave to file and argue such an issue must be applied for and obtained. See the case of Obiakor vs. The State (2002) 10 NWLR Pt. 776, pg. 612 pg.525 (2002) SCNLR pg.193. It is a well settled Law, and established both by the Rules of this Court and by the decisions referred to, that without the leave of Court, an Appellant cannot be heard on a point of Law not raised in the Court below. The rationale for this decision would seem to have been derived from the fact that an Appellate Court is expected to hear grievances and complaints against decisions from the Court below. The duty of an appellate Court being the correction of any errors of the Court below. It can only hear arguments on issues decided in the Court below which have resulted in such errors. Hence, a fresh point of law in this Court not hitherto argued in the Court below can hardly result in an allegation of error in the Court below. Of course, where the point of law taken for the first time on appeal involved a substantial and substantive or procedural point of law, and no further evidence could be adduced which would affect it, Such point could be raised and entertained on appeal. See Agu vs. Ozurumba Ikewibe (1991) LPELR 253, (1991) 4 SCNJ pg 56 (1991) 4 SC pg 1. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The Appellants herein, who were the claimants at the trial Court, commenced this action by a Writ of Summons dated 13th February, 2014 and a Further Amended Statement of Claim dated 7th September, 2016 claiming against Respondent, the following reliefs:-
“(A) A declaration that the installation of the transmission mast near the claimant’s residential building at Plot 3, Better Life Estate, Basiri, Ado Ekiti, Ekiti State by the defendant, its agents, privies or servants without due observance of Regulation 5(4) B & C of National Environmental (Standards for Telecommunications/Broadcast Facilities) Regulations, 2011 constitutes a nuisance and wrongful interference with the claimants’ interest in the use or enjoyment of their property;
B) A sum of N100 Million being general damages for the nuisance, wrongful interference with the claimants’ inter test in the use or enjoyment of their property and imminent negative biological effects caused the claimants and members of their family as a result of the installation of mobile phone transmission mast by the defendant’s agents near claimants’ residential building situate, lying and being at Plot 3, Better Life Estate, Basiri, Ado-Ekiti, Ekiti State.
C) An Order of perpetual injunction restraining the defendant, its agents, servants and privies from operating the mobile phone transmission mast installed near the claimants’ residential building situate, lying and being at Plot 3, Better Life Estate, Basiri, Ado-Ekiti, Ekiti State and from further interfering with the claimants’ use and enjoyment of their residential building situate, lying and being at Plot 3, Better Life Estate, Basiri, Ado-Ekiti, Ekiti State.

Parties filed and exchanged pleadings. The case of the Claimants as could be deduced from the evidence placed before the Court are that, the appellants, sued the respondent as defendant before the lower Court, over the nuisance the respondent inflicted on the appellants, by installing a transmission mast, beside the private building dwelling house of the appellants. The suit went into trial after the pre-trial was held by the Court. The appellants as claimants before the lower Court called three witnesses CW1-CW3, in support of their case, while the respondent as defendant called a witness DW1, and closed its case.

The appellants pleaded and gave evidence of how they built their house at Number 3, Better Life Estate, Basiri, Ado Ekiti, Ekiti State and moved in, in year 2000 as their private permanent home. Before the respondent, came to erect a transmission mast beside the appellants’ building in 2007. The appellants further pleaded, and gave evidence of how the diesel oil, from the trans-mission mast power generator polluted their underground well and contaminated the only source of water they had. The vibration from the mast affecting their building, and destroying the window louvres, as well as the bright rays from the mast, affecting the health condition of the 2nd appellant, which led to his being rushed to the University Teaching Hospital, Ado Ekiti, Ekiti State, where he was admitted and treated.

Parties addressed the Court by filing and adopting their respective written addresses, and on the 29th of June, 2018 judgment was delivered by the trial Court.

Being dissatisfied with the judgment of the trial Court, the appellants filed their Notice of Appeal dated 26th July, 2018, containing three grounds of appeal.

The appellants filed their brief of argument and distilled two issues for the determination of this appeal as follows:-
1. Whether the lower Court accessed the pleadings and evidence put forward by the appellants before dismissing the case of the appellants.
2. Whether on the strength of pleadings and evidence on record adduced by the parties, the Appellants did not prove acts of negligence and nuisance against the Respondent.

Mr. Femi Sarumi, counsel for the Respondent filed a Notice of Preliminary objection on the 4th of October, 2019.
The Preliminary Objection filed is argued at pages 3 – 6 paragraphs 3.01 – 3.09 of the Respondent’s brief of argument, and the Respondent also filed its own brief of argument, wherein two issues were formulated on behalf of the Respondent for the determination of the appeal. They read as follows:-
1) Whether the trial Judge was not right to have discountenanced the Written Depositions of Prince Samuel Afolabi Oyekanmi (the CW 1) filed on 18th October, 2016 and 10th December, 2014. (Ground 1).
2) Whether the lower Court was not right to have ascribe any iota of probative value to the newspaper reports admitted as Exhibits 1, 2 and 3. (Ground 2).

The Appellants filed a Reply Brief on 15th of October, 2019 dated same day.

At the hearing of the appeal on the 13th of March, 2020, Mr. Femi Sarumi Respondent’s counsel immediately referred to the Preliminary Objection he filed to 4th day of October, 2019. He pointed out the fact that he argued it in the Respondent’s brief dated 30th September, 2019, filed 4th October, 2019. Learned Counsel, consequently adopted the argument for the Preliminary Objection and urged this Court to uphold the objection.

The learned counsel for the Appellants noted that he filed a Reply to the Preliminary Objection in the Reply brief filed on the 15th October, 2019. He adopted the Reply Brief. He urged the Court to overrule the Preliminary Objection.

The Appellant’s brief filed on the 13th of September, 2019 was thereafter adopted by learned counsel for the Appellant. He urged the Court to allow the appeal.

Mr. Femi Sarumi, learned counsel for the Respondent adopted Respondent’s brief dated 30th of September, 2019, filed on the 4th of October, 2019. He prayed the Court to dismiss the appeal and uphold the decision of the trial Court.

Having earlier stated that, the Respondent filed a Notice of Preliminary objection, I will now proceed to consider the preliminary objection raised in the respondent’s Brief of argument on its merit, or for whatever it is worth, before considering the main appeal, as it is settled law, that preliminary objection must first of all be considered and decided/determined before treating the substantive appeal, if need be. See Ravih Abdul vs Union Bank of Nigeria Plc (2011) All NWLR (Pt.505) 203. This is because, it is settled law that where a preliminary objection is raised against the hearing of an appeal it must be taken first before proceeding to hear the appeal. See; Aregbesola vs Oyinlola (2011) NWLR (Pt.1253) 489, Obasanjo-Bello vs. FRN (2011) 10 NWLR (Pt.1256).
In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. His Lordship Rhodes-Vivour, JSC explained Preliminary Objections, when to file them and when not to file them. He said that:
“A Preliminary Objection should only be filed against the hearing of an appeal, and not against one or more grounds of appeal, which are not capable of disturbing the hearing of the appeal.
The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice. See Dakolo & 2 Ors v. Dakolo & 3 Ors (2011) 6 -7 SC (Pt.iii) p104 p. Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) p.531.”

RESPONDENT’S ARGUMENTS ON THE PRELIMINARY OBJECTION:
In arguing the preliminary objection, Respondent’s counsel hinged his preliminary objection on the grounds of appeal in the Notice of Appeal filed in the registry of the lower Court, by the Appellants on 26th July, 2018, which grounds of appeal and their particulars are as follows:
1. The learned trial judge erred in law when he held that the written deposition of the CWl, dated 18th October, 2016 is hereby discountenanced.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Particulars:
a. The evidence of CW1 was filed competently before a Commissioner for Oaths.
b. The introductory paragraph of CW1’s written statement on oath complies with Section 13, Oaths Acts contrary to the holding of the Court.
c. Failure of CW1, to input a last paragraph stating that the oath is made conscientiously, in accordance with oaths law is an irregularity by virtue of Section 113 Evidence Act.
2. The learned trial Judge erred in fact and in law when he held that;
“It is settled that a newspaper report is not generally admissible as evidence of the fact recorded in it… I fail to see the value of the documents in the determination of the issue before me.”
Particulars:
a. Exhibits 1 – 3 were tendered without objection from the Respondent.
b. Exhibits 1 – 3 were not contradicted by the Respondent.
c. Exhibits 1 – 3 supported the case of the claimants.
3. The decision is against the weight of evidence.

Learned counsel referred to the grounds of appeal, and noted that the Appellants formulated two issues from the above three grounds of appeal as follows:
1. Whether the lower Court accessed the pleadings and evidence put forward by the appellants before dismissing the case of the appellants.
2. Whether on the strength of pleadings and evidence on record adduced by the parties, the appellants did not prove acts of negligence and nuisance against the respondent.

Counsel submitted that upon a careful perusal of the above issues distilled by the Appellants, the said is-sues are not rooted in the grounds of appeal. The said issues have no bearing with the grounds of appeal, which bothers on the competence of the Written Statement on Oath of CW1, filed on 18th October, 2016 and the admissibility of the newspaper reports admitted in evidence as Exhibits 1, 2 and 3 respectively. Counsel submitted that it is now well settled that issues for determination distilled by parties, must be based on the grounds of appeal, otherwise they go to no issue and should be discountenanced. See: Ado-Ibrahim v. Ado-Ibrahim (2014) LPELR-22850(CA), Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608, Shitta-Bey v. A. G. Federation (1998) 10 NWLR (Pt. 570) 392, Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532, Udeh v. Okoli (2009) 7 NWLR (Pt. 1141) 571.

He further submitted that for an issue placed before the appeal Court for determination to be competent, it must be formulated from the grounds of appeal. He cited the decision of the Supreme Court in Chief I. A. Akpan v. Senator Effiong Bob (2010) LPELR-376(SC) where the apex Court held as follows:
“For issues placed before an appeal Court for determination of an appeal to be competent, they must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. In the case of Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563, this Court held that issues or questions for determination are framed from the grounds of appeal properly before the Court. They do not arise in NUBIBUS from the skies.”

Counsel reiterated the fact that the two issues formulated in the Appellants’ Brief of Argument do not arise from the three grounds of appeal filed on 26th July, 2018.

Counsel contended that, it is now settled law that any issue raised, not tied to a ground of appeal is deemed abandoned and must be struck out. Therefore in the same vein, any ground which does not birth an issue which is argued, is abandoned and should also be struck out.
See: Alexander Babatunde Fakayode v. Adeniran Adeniyi & Anor (2016) LPELR-41356 (CA).

He urged this Court to hold that, the issues raised in this appeal and the arguments in support of them, are incompetent and should be discountenanced by this Court. Counsel further urged this Court to hold that the grounds of appeal have been abandoned by the Appellants and same should be discountenanced.

The third ground of appeal, counsel submitted, could not have been the root of the two issues formulated in this appeal. The third ground of appeal which by its nature is the omnibus ground of appeal, is a complaint against the totality of evidence adduced before the Court, and not a complaint against a finding of fact, on a specific issue or document which must be raised by a substantive ground of appeal.
See: Umana v. Attah (2004) 7 NWLR (Pt. 871) 63 @ 87/88.
Opara v. S. D. (Nig.) Ltd. (2006) 15 NWLR (Pt. 1002) 342 @ 363.

Counsel further argued that the two issues formulated in this appeal, couldn’t have been rooted in the om-nibus ground three of the appeal for the under listed fundamental reasons:
In the First place, Ground 3 of Appeal being, an omnibus ground is merely an adjunct upon which no specific issue can be based.
See: Umana v. Attah (supra), Bhojson v. Daniel Kalio (2006) 5 NWLR (Pt. 973) 330 @348, Senator Godwin & Anor. v. Ikedi Godwin Ohakim & Anor (2009) NWLR (CA).

Secondly, counsel contended that Issue 2, formulated by the Appellants is a challenge on the specific finding of the trial Court on nuisance, and not negligence as wrongly alleged in the said issue. In his judgment at Page 529, Lines 11 to 25 particularly at Lines 18 to 21 of the Record of Appeal, the trial Judge found as a fact as follows:
“It was not in doubt that the mast was erected close to their Building. However, the fact that evidence adduced showed that the transmission mast was installed close to the claimants’ building was not sufficient to hold that nuisance has been proved.”

It is submitted that the above portion of the judgment of the lower Court is a finding on a specific issue of nuisance. It is beyond controversy that the principle of law on specific findings of fact made by a trial Court is that such an issue can only be raised as a substantive ground of appeal by the Appellant, who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.
See: Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 @ 139/140.

Counsel further submitted that, an omnibus ground cannot be tagged along other grounds upon which to formulate issues. An issue formulated on an omnibus ground is most incompetent.

He assumed but did not concede that, the two issues can conveniently be raised from the omnibus ground, as they are not tied to ground one and two of the grounds of appeal, he further submitted that they are both incompetent. The two issues, will amount to proliferation of issues from a ground of appeal. The apex Court has cautioned and seriously frowned at proliferation of issues in a plethora of authorities.
See: Stabilini Visinoni Ltd. v Sanderton Ventures Ltd. (2011) 8 NWLR (Pt. 2), Nnonye Anyichie (2000) 1 NWLR (Pt. 639) 66.

It is on these grounds counsel urged this Court to sustain this objection against the two issues formulated by the Appellants in this appeal, the arguments in support and discountenance the three grounds of appeal. Concluding counsel urged this Court to strike out the said is-sues and the grounds of appeal.

APPELLANTS’ ARGUMENTS AGAINST THE PRELIMINARY OBJECTION OF THE RESPONDENT.
Appellants’ counsel referred to the argument of Respondent, that the Appellants abandoned their ground of Appeal as contained in the Notice of Appeal of 26th July, 2018. He argued that it is not correct, as their two issues raised and argued in the Appellants’ brief of Argument dated 12th September, 2019 and filled 13th of September, 2019 were raised from the grounds as contained in Appellants Notice of Appeal.
The two issues raised from Appellant’s Notice of Appeal are:-
1. WHETHER the Lower Court accessed the pleadings and evidence put forward by the Appellants before dismissing the case of the Appellants.
2. WHETHER on the strength of pleadings and evidence on record adduced by the parties, the Appellants did not prove acts of negligence and nuisance against the respondent.

Counsel submitted that the respondent’s argument on preliminary objection is baseless, and a voyage of self-help to deceive this Court, in simple terms to derail justice. He urged this Court to disregard respondent’s argument on preliminary objection.

In the Appellants’ Notice of Appeal of 26th July, 2018, the Appellants complained against the entire or whole decision of the lower Court before this Court. The evidence of CW1, the 2nd Appellant so talked about by the respondent formed part and parcel of the evidence in this case as contained, in the Record of Appeal. What is more, the pleadings from both parties, evidence given by both parties and exhibits put forward by both parties are part of the records before the lower Court, the lower Court was duty bound to access and evaluate them within the enabling laws. See the case of CHIEF I.A. AKPAN V SENATOR EFFIONG BOB (2010) LPELR 376 (SC), Where the Apex Court held as follows;
“For issues placed before an Appeal Court for determination of an Appeal to be competent they must be formulated from grounds of Appeal: They must be based on, related to or arise from the grounds of Appeal.”

Premised on the above contention counsel submitted that, the Appellants’ two issues argued in the Appellants’ Brief of Argument arose, are related and based on the Appellants’ Notice of Appeal as contained in the Appellants’ Notice of Appeal. He urged this Court to so hold and strike out the Preliminary Objection and to deal with the Appeal on its merit.

The learned counsel for the respondent, in arguing the preliminary objection he raised, has drawn the attention of this Court to the fact that Appellants’ two issues for the determination of this appeal, do not flow from any of the grounds of appeal.
The three grounds of appeal have been earlier reproduced in this judgment:-
Ground 1, clearly attacks the holding of the learned trial judge, wherein the trial judge held that the written deposition of CW1, dated 18th October, 2016 is discountenanced.
Ground 2 – is categorical that the trial judge erred in law in his holding that a newspaper report is not admissible as evidence of fact recorded.
Ground 3 – is that the decision is against the weight of evidence.
In Momodu v Momoh (1991) 1 NWLR (PT. 169) 608, Uwais, JSC held; “It has been stated now times without number that issues formulated in a brief must be based on the ground or grounds of appeal filed by the parties. See Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt.161) 130 at p.1.”
Shitta-bey v A.G Federation (1998)10 NWLR (PT570)392 Onu, JSC held:
“It has been stated times without number that issues should be formulated in general practical terms and tailored to the real issues in controversy in the case. Such issues or questions for determination, it has also been stressed in several decisions of this Court, must of necessity be limited by, circumscribed, and fall within the scope of the grounds of appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 A-B; Adelaja v. Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 at 148; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) 608 and Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. The above proposition is complemented by another, which states that in framing issues for determination the proper procedure is to argue issues (not grounds) and show how they relate to the grounds of appeal vide Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254 and Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Fabiyi V Adeniyi 2000 6 NWLR PT. 662 Pages 532 per Kalgo, JSC:-

“It is now well settled that all issues for determination formulated in any appeal must be related to the grounds of appeal and the judgment or decision appealed against. See Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284 at 304; Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) 315; Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275. The issues should not be wider than the grounds encompass. See Egbe v. Alhaji & Ors (1990) 1 NWLR (Pt. 128) 546.”
In Charles Organ & Ors V Nigeria Liquified Natural Gas Ltd & Anor (2013) LPELR 20942 (SC) Dattijo Muhammad, JSC, held:
“It is an elementary principle that issues for the determination of appeals must not only draw from the grounds of appeal in the Appellant’s Notice, the issues must also relate to the decision appealed against. Where an issue proposed for the determination of an appeal does not relate or attack the decision appealed against, it must, being incompetent, necessarily be discountenanced.”
I have carefully perused the three grounds of appeal. I am unable to see how the first issue, which asked the question whether the lower Court evaluated the pleadings and evidence put forward by the appellants before dismissing the case of the Appellants, could have been distilled from that, or any of the three grounds of appeal reproduced above. The first ground of appeal attacked the holding of the trial judge, who discountenanced the written deposition of CW1, dated 18th October, 2016. The first Issue for determination is inquiry whether the lower Court accessed the pleadings and evidence put forward by the appellants. The holding of the trial judge is specifically on rejection of written deposition of CW1, it did not refer to evaluation or assessment of evidence. I am of the view that the first issue undoubtedly was not distilled from Ground 1 of the grounds of appeal in Appellants’ Notice of appeal.
The second issue distilled by Appellants for determination, l agree with Respondent’s counsel that it is a challenge on the specific finding of the trial Court on nuisance and not on negligence. The second issue is an inquiry whether on the pleadings and evidence adduced before the Court, the Appellants proved acts of negligence and nuisance against the Respondent. As l had stated earlier, the 1st Ground of appeal is on the holding that the learned trial judge erred in law when he rejected the evidence of CW1. Clearly, the second issue for determination undoubtedly did not emanate from any of the three grounds of appeal, l have reproduced above.
I agree with the objection raised by Respondent’s counsel, that the two issues raised for determination by Appellants’ counsel, glaringly neither draws from the grounds of appeal nor attack the judgment appealed against. It remains the law that such issues and the arguments proffered on them must be, and are hereby discountenanced.
It is now trite that issues in an appeal should arise and be tied to the grounds of appeal and any issue which is not based on a ground of appeal is incompetent and it ought to be struck out.
See Osahon v FRN (2003) 16 NWLR (Pt. 845) 89 at 114, Registered Trustees Pentecostal Assemblies of the World Inc. v. The Registered Trustees of the African Apostolic Christ Church (2002) 15 NWLR (pt. 700) 474 at 450; Adelusola v. Akinde (2004) 12 NWLR (pt.887) 295 and Asalu v. Dakan (2006).

The Respondent’s counsel urged this Court to discountenance the three grounds of appeal.

It was contended by the Learned Counsel for the Respondent that, a complaint that the Judgment in the omnibus ground is against the weight of evidence implies that the Judgment of the trial Court, cannot be supported by the weight of evidence adduced by the successful party, and that the inference it drew based on the evidence it accepted cannot be justified.

He assumed that, the two issues can conveniently be raised from the omnibus ground, as they are not tied to ground one and two of the grounds of appeal.

The Appellants filed three grounds of appeal, but have formulated two issues for determination of this appeal. The two issues formulated by the appellants are ominously silent as to which of the grounds of appeal any of the issues arose.
In arguing the issues learned counsel for the appellants failed to relate any of them to the ground of appeal. Though an issue under the rules of brief writing may encompass one or more grounds of appeal, it is incompetent and inelegant to formulate more issues than the grounds of appeal as such exercise is frowned at and deprecated by this Court. In Nwankwo v. F.R.N [2003] 3 NWLR (Pt.809] 1 at 25 paragraph D-E, this Court per Ekpe JCA said:-
“In the appellant’s Notice of appeal, there is only one ground of appeal, but there are six issues for the determination of the appeal, formulated in the appellants’ brief of argument.
It is an elementary principle in brief writing, issues formulated in a brief must of necessity arise or be related to the grounds of appeal filed. The issues should not be so prolix and proliferate as to be more in number, than the grounds of appeal on which they are related or based … When in an appeal, an issue formulated in the brief of argument is not supported by, or related to any of the grounds of the grounds of appeal filed, such an issue should not be determined by the Court, and should be discountenanced and struck out by the Court.”
See Ibrahim v. INEC & ORS [1999] 8 NWLR[Pt.614] 334; Ishie v. Mowanso (2000) 13 NWLR (Pt.684) 279; Modupe v. The State (1988) 4 NWLR (pt.87) 130. In Abioye v. Afolabi (1998) 4 NWLR (pt.545) 296, it was held “that an issue for determination which is not related to any of the grounds of appeal filed is incompetent and will be discountenanced or disregarded. In the instant appeal, apart from proliferation of the issues, learned counsel for the appellants has failed to tie any of the issues to the sole ground of appeal. The issue of fishing out which of the issues is related to the ground of appeal is now left for the Court. It must be made clear therefore that it is not the responsibility of this Court to search through the issues formulated by parties with a view to tying them to the grounds of appeal.”
This is so because any attempt by the Court to do so, will amount to descending into the arena of contest, and the dust raised therefrom is capable of beclouding the Court’s vision. It is the duty of the learned counsel for the parties, to articulate briefs which they file and adopted before this Court.

What therefore is a ground of appeal as envisaged by Order 7 Rule 2(1), (2) and (3) of Court of Appeal Rules 2016?
“2.(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of Appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.
(2 Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads, the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively.”
The provisions of Order 7 Rule 3 of the current Court of Appeal Rules, 2016 and its predecessor provisions in Order 6 Rule 3 of the 2011 Court of Appeal Rules, have been the subject of judicial attention and discourse in a number of decided cases of this Court and the Supreme Court. In all these decisions the Courts have preponderantly emphasized that grounds of appeal must be a complaint against general or specific findings of a lower Court, and should be set forth concisely under distinct heads without any arguments or narrative. The Courts have also maintained that a ground of appeal should not be vague, and must disclose a reasonable ground of appeal. Grounds of appeal have been held to be analogous.
The Appellants’ three (3) Grounds of Appeal already reproduced above ought to follow the law in Order to be competent.
When couching a ground of Appeal, it should consist of the error of Law or fact alleged against, and relied upon to set the Judgment aside. See Metal Construction (WA) Ltd vs. Migliore (1990) 1 NWLR Pt.126 Pg. 299, PDP vs. KSIEC (2006) 3 NWLR Pt.968 pg.565.
Thus, the purpose of the grounds is to isolate and accentuate, for attack, the basis of the reasoning of the decision being challenged. Saraki vs. Kotoye (1992) 9 NWLR Pt.264 pg.156.
A ground of Appeal must be couched in such a way as to attack the Judgment of a Court on the issue decided by it. See First Bank of Nig. Plc. vs. May Medical Clinics (1996) 9 NWLR pt.471 pg.195, Folbod Investment Ltd vs. Alpha Merchant Bank Ltd (1996) 10 NWLR Pt. 478 pg. 344, BOSIEC vs. Kachala (2006) 1 NWLR Pt.962 pg.587, Ngige vs. Obi (2006) 14 NWLR Pt.999 pg. 1.
In Saraki vs. Kotoye, (1992) LPELR-3016, Karibi-Whyte JSC held that:-
“It is a well settled proposition of Law in respect of which there can hardly be a departure that the grounds of Appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of Appeal are not formulated in nubibus, they must be in firma terra, namely arise from the Judgment.”
However, meritorious the ground of Appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the Judicial Powers of the Constitution in the Courts.
In all cases, the subject matter for determination must be an issue in controversy between the parties. The decisions appealed against must have decided the issues. In every appeal, the issue or issues in controversy are fixed and circumscribed by a statement on the part of the decision appealed against. Hence, the grounds of appeal must ex-necessitate be based on such issues in controversy. See Niger Construction Co. Ltd. vs. Okugbeni (1987) 4 NWLR pt 67 pg.787. Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. A fortiori, no issue for determination can be validly formulated therefrom.
With the above, it is obvious that the Appellants’ three grounds of appeal do not fall within the scope of the definition of what a ground of appeal is. The Appellants’ had couched their three (3) grounds of appeal as if they are articulating issues for resolution. The grounds of appeal are still asking questions for determination. The Appellants, l observe had not specifically stated in their three grounds of appeal what part of the judgment they are contesting. A ground of appeal must be couched in such a way as to attack the judgment of a Court on the issue decided by it. First Bank of Nig. Plc vs. May Medical Clinics (supra) Folbod Investment Ltd vs. Alpha Merchant Bank Ltd.(supra) BOSIEC vs. Kachala (supra).
The purpose of grounds of appeal is to give notice to the Respondent of the errors complained of. Thus, where an Appellant relies on any ground, this must be properly raised either by way of a ground of appeal, or a cross appeal in a case of a Respondent. Bhojsons Plc vs. Daniel-Kalio (2006) 5 NWLR Pt.973 pg. 330.
In this appeal, the Appellants’ supposed grounds are a far cry from what a ground of appeal should consist of. The Appellants’ cannot at this stage be asking questions begging for determination. At this stage, the questions should have been answered by the Court. The Appellants should in their grounds of appeal be questioning, the errors of law or facts or questioning the evaluation of evidence by the Court.
Unfortunately in this appeal, these are the things lacking in the Appellants’ grounds of appeal. The grounds of appeal couched by the Appellants are worded like issues for determination, and do not contain what they should contain as envisaged by Order 7 Rule 2 Court of Appeal Rules, 2016.

It is settled that when a party seeks to file and argue in this Court, a fresh issue not canvassed in the Lower Courts, it must be by leave. Whether the issues pertain to Law or otherwise, leave to file and argue such an issue must be applied for and obtained. See the case of Obiakor vs. The State (2002) 10 NWLR Pt. 776, pg. 612 pg.525 (2002) SCNLR pg.193. It is a well settled Law, and established both by the Rules of this Court and by the decisions referred to, that without the leave of Court, an Appellant cannot be heard on a point of Law not raised in the Court below. The rationale for this decision would seem to have been derived from the fact that an Appellate Court is expected to hear grievances and complaints against decisions from the Court below. The duty of an appellate Court being the correction of any errors of the Court below. It can only hear arguments on issues decided in the Court below which have resulted in such errors. Hence, a fresh point of law in this Court not hitherto argued in the Court below can hardly result in an allegation of error in the Court below. Of course, where the point of law taken for the first time on appeal involved a substantial and substantive or procedural point of law, and no further evidence could be adduced which would affect it, Such point could be raised and entertained on appeal. See Agu vs. Ozurumba Ikewibe (1991) LPELR 253, (1991) 4 SCNJ pg 56 (1991) 4 SC pg 1.
Ground two, in-spite of the fact that it does not conform as a ground of appeal, is also incompetent. Ground two does not stem from any error of the trial Court. This issue was not canvassed in the trial Court and as such requires leave to be raised as a ground of appeal.
A party cannot surreptitiously, smuggle into his issues or grounds without such leave, first sought, and obtained any new issue or ground. If that is done, such grounds or issues are incompetent and will be struck out. Per Mohammed JSC in Nwachukwu vs. The State (Supra).

Having held that the two issues raised by the Respondent in his Preliminary Objection succeeds, the Preliminary Objection is upheld. The notice and grounds of appeal are hereby struck out.
Appeal is accordingly dismissed. I make no order as to costs.

In case l am wrong on the preliminary objection, l have decided to determine this appeal on the merit since l am not infallible.

ARGUMENT ON MAIN APPEAL
1. ISSUE ONE
WHETHER THE LOWER COURT ASSESSED THE PLEADINGS AND EVIDENCE PUT FORWARD BY THE APPELLANTS BEFORE DISMISSING THE CASE OF THE APPELLANTS.

In arguing Issue 1, Appellants’ counsel submitted that the trial Court failed to properly assess the pleadings and evidence put forward by the Appellants as claimants before the lower Court, and respondent as defendant before the Court to properly ascribe probative value to them in this case.

The further amended statement of claim of the appellants dated 7th September, 2016 paragraph 11-14 was referred to by counsel. The main grouse of the Appellants in this issue can be gleaned from the paragraphs 11-14 which form the basis of the case of the appellants before the lower Court, counsel contended that the lower Court did not consider them in favour of the appellants.
What is more, the Appellants went ahead to plead the measures taken by the respondent, which did not abate the problems of the appellants. These can be seen in paragraphs 29 and 30 of the further amended statement of claim.

Counsel further submitted that from the facts emanating from the pleadings, the respondent admitted creating discomfort or nuisance to the appellants hence the remedial measures so taken for the appellants. He then contended that what is admitted needs no further proof. He prayed this Court to so hold. See PHOENIX MOTORS LTD v OJEWUNMI (1992) 6 NWLR (PT. 248) 501, and the case of AJUWON v AKANNI (1993) 9 NWLR (PT 316) 182. It was submitted by counsel that, pleadings are developed and expatiated by evidence put together by the parties to the case at hand. He contended that in the instant case, the trial Court jettisoned the evidence of the 2nd appellant as CW1, on the basis of non compliance with Oaths Law. The evidence of CW2,and CW3 were precise and concise, yet the trial Court failed to holistically evaluate their evidence on oath, upon which they (CW2 and CW3) were cross-examined but never discredited by the respondent during trial at the lower Court. CW2 gave evidence on oath at paragraphs 1.06, 1.07 and 1.08 of his statement on oath.

CW3, a medical doctor who came to Court on subpoena gave professional evidence on oath.

Counsel submitted that the evidence of the CW2, and the CW3, were never tested, challenged or discredited under cross-examination by the respondent or its counsel.

Counsel contended that such pieces of evidence not discredited remain valid, acceptable and binding on the respondent. He prayed this Court to so hold.

He contended that the trial Court did not give consideration to the pieces of evidence, given on oath by CW2, and CW3 in support of the case of the appellants, rather the trial Court merely picked on the evidence of the CW2, and CW3 emanating from cross-examination relating only to events of a single day.

Counsel submitted that the CW2, did not come before the trial Court only on the event that took place on the first day the respondent’s mast was tested, or began transmission, but came to Court to give evidence on events she saw and took part in as shown in the Record of Appeal. That the trial Court also failed to properly evaluate the evidence of CW3 , and ascribe probative value to same.

Counsel further submitted that the evaluation given to the evidence of CW2 and CW3 by the trial Court amounts to looking for facts to destroy the evidence in support of the case of the appellants, as claimants before the lower Court, as the evidence of CW3, admitting that several factors could have caused the convulsion and seizure disorder of CW1, was not made to exonerate the respondent but a wider expert opinion of CW3’s, who was in Court to say the truth and nothing but the truth. Particularly when exhibit 9 has clearly explained the factor responsible for the ill-health of CW1.

Counsel contended that the trial Court embarked on a voyage of discovery of evidence to support the case of the respondent when the trial Court decided to overlook part of the evidence of CW2, and CW3 to stick to part of the evidence to substantiate the case of the respondent. This has occasioned a miscarriage of justice particularly when the Courts are advised to avoid technicalities in the interest of justice. See OLABODE OYEWINLE v ARAGBIJI OF IRIGBIJI OBA RASHEED AYOTUNDE OLABOMI & 3 ORS (2014) AFWLR, (PT 731) AT 1536, PG. 1545, R. 11.

He submitted that the learned trial judge, erred in facts and law to have reached the conclusion that the claimants had been unable to convince the Court as to the liability of the defendant, in the erection of the mast in contention. Because the appellants as claimants were able to establish from pleadings and evidence, the impact of the erection of the respondent’s transmission mast very close to their private property (building) and the health of CW1, pleaded and proved by the evidence of CW2, CW3 and exhibit 9.

ISSUE TWO
WHETHER ON THE STRENGTH OF PLEADINGS AND EVIDENCE ON RECORD ADDUCED BY THE PARTIES, THE APPELLANTS DID NOT PROVE ACTS OF NEGLIGENCE AND NUISANCE AGAINST THE RESPONDENT.

On this issue, counsel submitted that from the pleadings and evidence from both parties before the trial Court, the appellants were able to prove the acts of negligence and nuisance against the respondent. The pleadings, and evidence particularly that of the appellants as well as exhibits tendered and admitted helped in proving the appellants’ case.

Counsel pointed out that, the appellants specifically and clearly pleaded these facts which were not denied by the respondent in their statement of defence, written statement on oath and evidence under cross examination. The Respondent pleaded and admitted these facts in their statement of defence particularly paragraphs 22, 23, 24 and 25.

That it was after the official visit of the Commissioner of Environment to the respondent’s mast and sealing off the transmission mast, as well as the visit of NESREA, and also sealing off the mast, that prompted the respondent to accept liability to abate the pains, stress, and injury on the appellants on their property (building) and the health of the 2nd appellant.

Counsel then submitted that the respondent took steps as pleaded in paragraph 29 of the further amended statement of claim.

Counsel then contended that, since the respondent embarked on remedial facilities for and on behalf of the appellants, same pleaded by respondent, it was clear and proved by the appellants that the respondent indeed committed acts of negligence and nuisance on the Appellants’ property, that warrant the granting of the claims of the appellants against the respondent by the lower court.

Counsel concluding urged this court to uphold their argument and legal submissions together with the authorities cited and relied on by the appellants, and to resolve the two issues formulated for determination in favour of the appellants. And this Court to allow the appeal.

In response to submissions of Appellants in their two issues, Respondent’s counsel referred to the genesis of the installation of the Respondent’s mast next door to Appellants’ dwelling house. The Appellants, shortly after the integration of the Base Station, instituted action against the Respondent and one Mr. Ayo Adekunjo on/about 2011, in SUIT: HAD/131/2011: MRS. FLORENCE F. OYEKANMI & ANOR. v. MTN NIGERIA COMMUNICATION LIMITED & ANOR.

The matter, despite the settlement and exchange of pleadings, was struck out on 5th March, 2013,for want of diligent prosecution.

Counsel referred to Appellants’ claim in their Further Amended Statement of Claim filed in the registry of the lower Court on 18th October, 2016, already reproduced in this judgment.

And in proof of the above claims, the Appellants called the 2nd Appellant (Prince Samuel Afolabi Oyekanmi) on 24th March, 2017 as their first and principal witness. He adopted his Re-Sworn Written Statement on Oath filed 18th October, 2016 at pages 241 to Page 248 of the Record of Appeal and an Additional Written Statement on Oath filed on 10th December, 2014. He tendered documents admitted in evidence as Exhibit 1 to Exhibit 8(A) to (F).

He was cross-examined on 6th April, 2017 and closed his evidence on 23rd June, 2017.

The Appellants called Mrs. Florence Omolegbe Oluwarotimi as their second Witness on 23rd June, 2017. She adopted her Re-Sworn Written Statement on Oath filed on 18th October, 2016 . She closed her evidence same day.

Dr. Adeleye Toyin Emmanuel of Department of Medicine, University Teaching Hospital, Ado-Ekiti was the last witness of the Appellants. He gave evidence on 17th July, 2017 on subpoena. He tendered a document admitted in evidence as Exhibit 9, and closed his evidence same day.

The Respondent opened its defence before the lower Court on 17th July, 2017 with the evidence of its sole Witness (Daniel Boboye, the Regional Safety, Health and Environment Co-ordinator, South-West). He tendered a document admitted as Exhibit 11 and closed his evidence same day.

The lower Court, after the exchange of Final Written Addresses and upon the application of the Appellants, visited the locus on 31st May, 2018. Upon the completion of the visit, the lower Court took evidence of the 2nd Appellant, and the Respondent’s sole Witness in open Court.

The Final Written Addresses were subsequently adopted same day and judgment reserved to a date to be communicated to parties.

On 29th June, 2018, the lower Court, after resolving the sole issue postulated by the Appellants against them, dismissed all their claims.

In response to the judgment of the lower Court, the Appellants filed a Notice of Appeal at the registry of the lower Court on 26th July, 2018, and by an order of this Honourable Court made on 16th September, 2019, granted leave to file their Appellants’ Brief of Argument out of time and the Brief of Argument filed on 13th September, 2019 was deemed as properly filed as at the said date.

The Appellants formulated two issues from the three grounds of appeal in their Brief of Argument deemed as properly filed on 16th September, 2016.

Prior to the formulation of issues for determination in this appeal, Respondent sought the leave this Court to raise a Preliminary Objection against the competence of Issues 1, and 2 formulated in the Brief of Argument and by extension the abandonment of Grounds 1 and 2 of the Grounds of Appeal.

Respondent’s counsel set out in details the various Written Statements filed by Prince Samuel Afolabi Oyekanmi (the CW1, before the lower Court and who incidentally is the 2nd Appellant), and the ones adopted by him at trial. CW1, filed a Written Statement along with the originating processes filed on 13th February, 2014 pursuant to the order of Court made on 9th January, 2014.
He also filed an “Additional Written Statement on Oath” along with the “Reply to Statement of Defence” on 9th December, 2014.
He equally filed an “Amended Written Statement on Oath” along with the “Amended Statement of Claim”.

Counsel submitted that the said Written Statement was withdrawn at the instance of the Appellants’ counsel on 14th March, 2016, pursuant to the order of the lower Court made same day. CW1, also filed “Further Additional Written Statement on Oath” at Pages 219 to 220 of the Record of Appeal.
CW1, further filed a “Re-Sworn Written Statement on Oath” along with the “Further Amended Statement of Claim” on 18th October, 2016.
And upon the commencement of trial on 24th March, 2017, CW1 adopted his Written Statement captioned “Re-Sworn Written Statement on Oath” filed on 18th October, 2016 along with the “Further Amended Statement of Claim” and his Written Statement captioned “Additional Written Statement on Oath” filed along with the “Reply to Statement of Defence”.

Counsel after identifying the Written Statements adopted by CW1, asked the major question whether the said Statements adopted were on oath, and by extension capable of been adopted by CW1.

In that the requirement for filing a Written Statement on Oath, along with the originating process of a party is a prescription of the Rules. It is settled, that once the law, or Rules prescribe the particular mode for the performance of a duty, that method and no other must be adopted in doing the act. See: C.C.B. (Nig.) Plc. v. Anambra State (1992) 8 NWLR (Pt. 261) 528, Saida Saad & Anor v. Maifata & Ors. (2008) LPELR-4915(CA).

The prescription of Order 3 Rule 2(1) (c) of Ekiti State High Court (Civil Procedure) Rules, 2011 is that a written statement must be on oath. Counsel submitted that for a Written Statement to be on oath, it must be in compliance with the First Schedule to Section 13 of the Oaths Act. A valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria, 2004. The form prescribed by Section 13 is in the 1st Schedule to the Act. which provides as follows:
“I do solemnly and sincerely declare…”

Any Written Statement, which does not bear the First Schedule to Section 13 of the Oaths Act, cannot be said to be a Written Statement on Oath.
See: Obed Orlando Ibe & Anor v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593.
Section 13 of the Oaths Acts provides as follows:
“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule which is as follows, 1 (name supplied) do solemnly and sincerely declare, that I make this solemn declaration conscientiously believing same (or the contents) to be true.”

The legitimacy of oath in any Written Statement was put to rest by the Enugu Division of this Honourable Court where it said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor (2010) All FWLR (Pt. 506) 1945 @ 1947 as follows:
“Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or affidavit properly so called.”

Counsel submitted that the signature and stamp of the Commissioner for Oaths on a statement cannot remedy the defect.

He looked at the Written Statements of CW1, and submitted that it is apparent that they lack the oath clause. There is no Paragraph or statement in the two Written Statements showing that they were made “solemnly, conscientiously believing the contents to be true and correct by virtue of the Oaths Act”. The legal effect of the absence of such a Paragraph or statement in the Written Statements of CW1 is according to His Lordship Elechi J.C.A. in Guaranty Trust Bank Plc. v. Barrister Ajiboye Ayodeji Abiodun (2017) LPELR-42551(CA), “is not an oath or Affidavit properly so called.”

He on the strength of the above submissions, stated that the lower Court judge was justified to have held in his judgment at Page 523 of the Record that the two statements are incompetent and should be discountenanced.

Counsel further submitted that the lower Court was justified for placing reliance on the decision of this Honourable Court in Guaranty Trust Bank Plc. v. Barrister Ajiboye Ayodeji Abiodun (2017) LPELR-42551(CA) at the expense of the decision inUduma v. Arunsi & Ors (2010) LPELR-9133(CA).

It is apparent that while Guaranty Trust Bank Plc. v. Barrister Ajiboye A. Abiodun was delivered in 2017, Uduma v. Arunsi was delivered in 2010. The decision in Barrister Ajiboye Ayodeji Abiodun (supra) therefore represents the position of the law on Written Statement on Oath as of today. The reliance placed on Guaranty Trust Bank Plc. v. Barrister Ajiboye Ayodeji Abiodun (supra) by the lower Court was in line with settled authorities that where the trial Court is faced with the conflicting decisions of a higher Court on a particular issue, the decision that is later in time represent the correct position of the law. See Hon. Jeffrey Moses Owor v. Hon. Bereware Christopher & Ors. (2008) LPELR-4813(CA) where the Court held as follows:
“As it is settled law that where a lower Court is faced with conflicting decisions of a higher Court on a particular issue, the rule is that the decision that is later in time operates as a bar and represents the correct position of the law.”
See: Ansa v. R.T.PC.N. (2008) All FWLR (Pt. 405)1681 @ 1686, Mkpedem v. Udo (2000) 9 NWLR (Pt. 673) 63, Nwangwu v. Ukachukwu (2000) 6 NWLR (Pt. 662) 674.

Counsel on the strength of the above arguments urged this Court to hold that the lower Court was right to have discountenanced the Written Statements of CW1, and resolve this issue in favor of the Respondent.

ISSUE 2:
On this issue Respondents’ counsel pointed out, the wrong impression created by the Appellants, that the documents admitted in evidence as Exhibits 1, 2 and 3 which are the subject matter of this ground of appeal as contained in the Particulars, were admitted in evidence without any objection. It is apparent on Record that trial was opened before the lower Court on 24th March, 2017, in the absence of the Respondent and its Counsel. The CW1, after adopting his Written Statements, tendered the said documents. The Respondent and its Counsel who were not in Court could not have naturally objected to their admissibility.

In the course of introductory issues that arose from the Final Written Address of the parties, that the lower Court treated both the admissibility and the evidential value of the documents/Exhibits. The lower Court, after reference to some authorities, held at Page 522 Lines 4 to 12 of the Record as follows:
“Still on introductory issues, the claimants had placed reliance on Exhibits 1-3, which are newspaper publications in proof of their case that the base station of the defendant was sealed off by NESREA. It is settled that a newspaper report is not generally admissible as evidence of the fact recorded in it… I fail to see the value of the documents in the determination of the issue before me.”

With the above decision of the trial Judge, the million dollar question begging for answer is whether the trial Judge was wrong to have condemned the admissibility of the documents as well as refused to give any probative value to them.

Counsel submitted that our law is settled on both the admissibility, and the evidential value of reports contained in a newspaper report. A report in a newspaper is regarded as a hearsay evidence, which has no evidential value. It is inadmissible in evidence. The position of our law is as stated by the apex Court in RNHW v. SAMA (1991) 12 NWLR (Pt. 171) 64 @ 77 where the Court said as follows:
“A newspaper report is not generally admissible as evidence of the facts recorded in it.”
Tobi, J.S.C., while confirming the position of law and questioning the evidential value of a newspaper report said in Ojukwu v. Yaradua (2009) All FWLR (Pt. 482) 1065 as follows:
“What is the evidential value of a newspaper report? I do not see any and there is none in law.”
In reiterating the above position of the apex Court, this Honourable Court per Ogunwumiju, J.C.A held in Olly v. Tunji (2012) all FWLR (Pt. 654) 39 @ 67 as follows:
“There is no doubt in my mind that this Court cannot rely on newspaper publications etc which the 1st Respondent relied on among other evidence Newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication.”

Counsel premised on the above authorities submitted that the lower Court was perfectly in order to have refused to give any evidential value to the said exhibits. He further submitted that the lower Court ought not to have admitted the said documents in evidence in the first instance. Having admitted them in evidence, counsel submitted that this Honourable Court has the inherent jurisdiction to exclude or expunge them from the records, notwithstanding that the Respondent and its Counsel never had the opportunity to object to the wrongly admitted exhibits.
See: Stephen Haruna v. The Attorney-General of Federation (2012) LPELR-7821 (SC).
Olayinka v State (2007) 9 NWLR (Pt. 1040) 561.
Counsel urged this court to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUES
It is note worthy that the appellants filed a Reply brief of argument to the respondent’s brief of argument, but in it the appellants seem to be rearguing their Appellants’ appeal or carrying out some repair works to their earlier arguments.
It is trite, that a reply brief is filed only in response to new argument of the respondent on law, that has newly been raised by the respondent but was not touched by the appellant. A reply brief is to deal with a new issue of law or arguments raised in an objection in the respondent’s brief which was not covered by the appellant’s brief. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court.
A reply brief has been held not to be a repair kit to put right any lacuna or error in the appellant’s brief of argument. See; Dr. Augustine N. Mozie & Ors v. Chike Mbamalu & Ors (2006) 12 SCM 11 (Pt.1) 306 at 320; Osuji v. Ekeocha (2009) 10 SCM 72 at 88. I shall therefore not countenance the Appellants’ reply brief of argument which has not said anything new from what is contained in the main brief of argument.

ISSUE 1
“Whether the lower Court accessed the pleadings and evidence put forward by the Appellant before dismissing the case of the Appellants.”

The first issue distilled for determination of this appeal by Appellants’ counsel in my view is on evaluation of the pleadings and evidence adduced before the lower Court before dismissing the case of the appellants. In the case of Chukwuemeka Ezeuko v the State (2016) LPELR-40046 (SC) Ngwuta JSC held:-
“Evaluation of evidence primarily is the exclusive preserve of the trial Court except in case of documentary evidence in which the trial Court and the appellate have equal right to evaluate the evidence. See Iwuoha v. Nipost (2003) 4 SC (Pt. 11) 37. Where the trial Court failed to evaluate the evidence, or to evaluate it properly, or the evaluation resulted in a perverse conclusion, the Appellate Court would re-assess and evaluate the evidence to reach a just conclusion – which may be different from that of the trial Court, but not necessarily so. See Okolo v. Uzoka (1978) 4 SC 77 at 86; Abusomwan v. Merchantile Bank (Nig) Ltd (No. 2) (1987) 3 WLR (Pt.60) 20.”

A written statement on oath is the evidence on which a party relies in Court to establish his case or his answers to opponent’s case as required by Order 32 Rule 2(1) and 3(1) of the Rules of the lower Court. It is equally unlike pleading which are written statements (and not evidence) generally of facts relied upon by a party in proof of his case.
See:B.V. Magnusson V. Koiki & Ors (1993) LPELR-1818 (SC). Order 3 Rule 2(1)(c) of the Rules of the lower Court prescribes that a written statement must be on oath and not an affidavit.
See: Leo Melos Pharmaceutical Industries Ltd & Anor V. Union Homes Savings and Loans Ltd (2010) LPELR- 4431 (CA).
Respondent’s Counsel submitted that, the entire arguments of the Appellants, in this issue as they relate to the competence and validity of a written statement on oath filed in the Registry of this Court on the 5th June, 2012, and the additional written statement on oath captioned written statement on oath of Appellants’ witness in support of the Reply to statement of Defence filed on 8th October, 2013 misconceived, misapplied and most certainly is not the law. He referred the Court toGE INT’L Operations Ltd. v. Q-oil & Gas Services (2015) NWLR (pt 1440) 244 where the Court held thus:
“When an out of Court statement in writing is made on oath, it becomes a testimony without the oath, the deposition or written declarations on a piece of paper is a mere piece of paper. The oath makes written declarations or disposition on a piece of paper an affidavit.”
See also: Oraekwe v. Chukwuka (2010) LPELR 9128, Maraya Plastics Ltd v. Inland Bank (2007) 7 NWLR (pt 765) 109; Ishaq v. INEC (2008) LPELR 4336.
In paragraph 35 of the written statement on oath of the Respondent, filed on the 5th day of June, 2012 and paragraph 30 of the additional written statement on oath in support of the Reply to the statement of defence, filed on the 8th day of October, 2013, Appellants as witness stated thus:-
“That I swear to this affidavit in truth and in good faith and” the above depositions in the alleged written statement are not in full compliance with the provisions of the Oaths Act as to qualify as written statement on oath as prescribed by Order 3 Rule 2(1)(c) of the Rules of the lower Court. The said Order 3 Rule 2(1)(c) of the Rules of Ekiti State High Court Rules mandatorily directs a claimant to file written Statement on oath of the witnesses among other documents along with his originating process. The word SHALL as embodied in the said Order has been interpreted in many judicial authorities to mean a compulsion.
See: Onochie V. Odogwu (2006) 6 NWLR (pt 975) 65 (SC).
It therefore follows that a valid oath must be in the form prescribed by Section 13 of the Oaths Act, Laws of the Federation of Nigeria 2004. The form prescribed bySection 13 is in the 1st Schedule to the Act which provide as follows:

“I do solemnly and sincerely declare…”
Any Written statement, therefore, which does not bear the First Schedule to Section 13 of the Oaths Act, cannot be said to be a Written Statement on Oath.
See: Obed Orlando Ibe & Anor. v. Nkiru Ugochukwu & 41 Ors. (2010) All NWLR (Pt. 504) 1590 @ 1592/1593.
Section 13 of the Oaths Act provides as follows:
“It shall be lawful for any Commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths, to take and receive the declaration of any person voluntarily making the same before him, in the form set out in the 1st Schedule which is as follows, I (name supplied) do solemnly and sincerely declare, that I make this solemn declaration contentiously believing same or the contents to be true.”
In putting the legitimacy of oath in any Written Statement to rest, the Enugu Division of the Court of Appeal said in Chikwelu Chris Obumneke v. Okeke Sylvester & Anor (2010) All FWLR (Pt. 605) 1945 @ 1947 as follows:
“Thus, every oath to be legitimate must comply with the provisions of the Oaths Act, Cap. 333, Laws of the Federation and the 1st Schedule thereto. Where there is no statement in an oath stating that it is made solemnly, conscientiously believing the contents to be true and correct and by virtue of the Oaths Act, it is not an oath or Affidavit properly so called.”
From the signature and stamp of the Commissioner for Oaths referred to above, it would be seen that the grouse expressed by the Appellants’ Counsel against rejection of both written declarations/depositions border on both their form and substance.
As stated earlier in the course of this judgment, any written statement which does not comply with the 1st schedule to Section 13 of the Oaths Act, cannot be said to be a written statement on oath. It is this vital aspect of the oath that is missing in the written statement of the Appellants’ witness CW1, in the present appeal. Non compliance with the provisions of the Oaths Act, is a fundamental breach of the Oaths Act. The consequence is that the entire statement of the Appellants’ witness CW1 is left bare. The Rules of Court are not made for fun, they are made to be obeyed.
See: Hart v. Hart (1990) 1 NWLR (pt 126) 276, Tom Ikimi v. Godwin Omamnli (1995) 3 NWLR (pt 383), Ibrahim v. Col Cletus Emein & Ors (1996) 2 NWLR (pt 430) 322, Tehat A.O. Sule v. Nigeria Cocoa Board (1985) All NLR 257, Odu v. Jolaoso (2002) 37 WRN 115.
It is on the basis of the above that I agree with the learned trial judge to jettison the evidence of CW1. The Rules of Court in that aspect must be obeyed and it is not a kind of breach that can be referred to as a technicality, as Appellants’ counsel would like us to believe.
Learned Counsel for the appellants, made a long list of facts or presumed facts to back the complaint that the trial Court did not properly evaluate the evidence, before allotting probative value to them. He complained that appellants pleaded in paragraphs 11- 14 of the Amended Statement of claim of the Appellants’ dated 7th September, 2016:-
“11. Shortly there after the defendant’s agents tested the transmission mast which generated a great vibration and emission of fumes.

The claimants’ building was shaken to its foundation, whilst the fumes forced the claimants out of their building and took refuge in the house of a neighbor.
12. Claimants further aver that the defendant started full operation of the transmission mast as a result of which the nuisance caused by the operation became unbearable for them.
13. Claimants eventually vacated the residential building and relocated to the house of one Mrs. Florence Rotimi. They live there up till this moment as continuous inhalement of the emission from the transmission mast could cause damage to the claimants’ health as well as the members of their family living with them.
14. The installation of the transmission mast to the claimants’ residential building is an eyesore and a potential health hazard.”
The paragraphs above form the fulcrum of the Appellants’ case, before the lower Court.
The appellants in paragraphs 29-30 pleaded the measures taken by the Respondent.
The Respondent in its statement of defence paragraphs 24-26 pleaded measures they had undertaken viz a viz the complainant of the Appellants.
Appellants’ counsel premised his contention, on the paragraphs referred to above, in contending that the respondent admitted creating discomfort or nuisance to the Appellants. He argued that the trial judge jettisoned, the evidence of CW1, on the basis of non compliance with oaths law. Whereas the evidence of the CW2, and CW3, recounted were never tested, challenged or discredited under cross examination by the respondent, or its counsel under a favorable condition. But the trial judge picked on the evidence of CW2, and CW3, emanating from cross examination relating only to events of a single day.
The complaint of Appellants’ counsel is that the evaluation given to the evidence of CW2, and CW3, by the trial judge amounted to looking for facts to destroy the evidence in support of the Appellants’ case.
The learned trial judge began evaluating the evidence before the Court, by first determining the competence of the defendants’ final written address, based on issues outside those formulated at the pre-trial conference without the leave of Court. In his exercise of evaluating evidence before the Court, learned trial judge examined the statement of defence. In his further evaluation of evidence, he looked at the written deposition by the CW1, dated 18/10/16, which he found revealed that it had no oaths clause. This was obviously missing in the written deposition with the implication that the written deposition fell short of the standard required under Section 13 of the Oaths Act.
I am of the view, that the learned trial judge rightly held that the written deposition adopted by the CW1, dated 18/10/16, revealed that the deposition had no oaths clause. It has been settled by a long line of decisions, that where in a written deposition there is no Oaths Clause in flagrant violation of Section 13 of the Oaths Act. Applying the above position of the law to this appeal, the implication of this, is that the two written depositions of the CW1, are incompetent before the Court, and are therefore correctly discountenanced by the learned trial judge. Only a competent written deposition could be adopted pursuant to Order 32 Rule 2(3) of the High Court of Ekiti State (Civil Procedure) Rules 2011. Section 215(1) of the Evidence Act 2011, provides that witnesses shall be first examined-in-chief.
Evidence in chief is the root on which cross-examination as a stem rests wherein the Appellants pleaded that shortly after the Respondent’s agents tested the transmission mast which generated a great vibration and emission of fumes. The Appellants building was shaken to its foundation whilst the fumes forced the Appellants out of their building and they took refuge in their neighbor’s building.
It is indisputable from the holding of the lower Court that the learned trial judge correctly accessed and evaluated the pleadings, and evidence adduced before the Court, in determining to dismiss the Appellants’ case.

In view of the above mandatory provisions of the law which the Appellants have breached, I shall and hereby resolve this issue No. 1 in favour of the Respondent.

Issue 2
“Whether on the strength of pleadings and evidence on record adduced by the parties, the Appellants did not prove acts of negligence and nuisance against the Respondent.”

The issue before the lower Court is premised principally on whether the tort of nuisance had been committed against the Appellants by the Respondent. The plank of the Appellants’ case was that the construction of Respondent’s mast near the premises of the Appellants was in violation of Regulation 5(4)B & C of National Environmental (Standards for Telecommunications/Broadcast Facilities) Regulations, 2011 and also constituted a nuisance. It is settled law that, the burden of proof is generally on the claimant. See Section 131 of the Evidence Act, 2011. Calabar Central Co-operative Thrift & Credit Society Ltd & Ors v Bassey Ebong Ekpo (2008) 6 NWLR (pt1083) 262. The question now is had the Appellants discharged the burden of proof placed on them by law?
In J. A. ADEDIRAN & ANOR V. INTERLAND TRANSPORT LIMITED Karibi Whyte JSC held-
The tort of nuisance is one of the many common law actions still available in this country. The common Law of England which applies in this country, recognies that nuisance may either be a public nuisance or a private nuisance. Public nuisance is one which inflicts damage, injury or inconvenience to the generality of the population or upon all of a class who come within its ambit. A private individual has a right of action for public nuisance if he can establish that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and that the particular damage is direct and substantial – SeeEjowhomu v. Edok-Eter Ltd.(1986) 5 NWLR (Pt.39) 1.
On the other hand, a private nuisance is one which interferes with a person’s use and enjoyment of land or of some right, such as an easement, connected with land. – See Ipadeola v. Oshowole (1987) 3 NWLR(Pt.59) 18. The distinction between public and private nuisance is of critical importance at common law because of the consideration of the proper person to initiate proceedings.
The general rule is that a private individual can only take proceedings in his own name in respect of an injury sustained from a public nuisance, where he has suffered some particular direct and substantial damage over and above those sustained by the public at large; or when the interference with the public right involves a violation of some private right of his own, or threat of damage to his property. He can also exercise such a right of action conferred on him by statute. In any case, the nuisance must be a cause of the injury – See Dymond v. Pearce (1972) 1 All ER 1142. In all other cases, known as relator actions, proceedings must be brought with the sanction and in the name of the Attorney-General. In this case also, the private individual who has sustained some special injury, and consequently has a valid right of action on his own account, joins the proceedings of the Attorney-General and claims in respect of that injury. – See A-G v. Logan (1891) 2 QB. 100; AG v. St. Ives R.D.C. (1960) 1 QB. 31.

Appellants’ counsel submitted that, from the pleadings and evidence from both parties before the trial Court, the Appellants were able to prove the acts of negligence and nuisance against the Respondent. That the pleadings and exhibits tendered and admitted helped in proving the Appellants’ case. These facts were pleaded in their Further Amended Statement of Claim dated 7th September, 2016, paragraphs 20 and 21;
“20. Another letter of invitation was sent to the defendant by the said Committee of the House of Assembly.
21. Claimants and members of the said Committee of the House of Assembly came to the site of the transmission mast to inspect same. The defendant’s agent were ordered by the Committee to abate the nuisance, but nothing meaningful was done by the defendant.”
Appellants contended that the Respondent in response to the above paragraphs pleaded and admitted the facts in their Statement of defence particularly paragraphs 22, 23, 24 and 25 which state as follows:-
“22. The defendant avers that, in the discharge of corporate responsibility to Government at all levels, it appeared along with its counsel (Femi Sarumi Esq.) before the Committee, but the meeting was rescheduled at the instance of the Committee members to 27th July, 2009.
23. The defendant avers that, it appeared with its counsel (Femi Sarumi Esq.) before the Committee on 27th, July 2009 as scheduled after presentation of their cases the committee ordered a visit to the site.
24. The defendant avers that in the course of presentation of its case before the Committee members , it generously offered to take some remedial steps to sustain the environmental condition of the Base Station in line with its social responsibility to its host community.
25.The defendant avers that after an extensive inspection of the site by the Committee members, they pleaded with it to carry out the remedial steps offered by it in the interest of good neighborliness with its host community.”

The Appellants further submitted that, the Respondent actually took steps as pleaded in paragraph 29 of the Further Amended Statement of Claim, wherein they stated as follows:-
“29. Defendant’s agents only did the following to abate the nuisance namely:
(i) Erection of a brick wall between its generator and the claimants’ building.
(ii) Changing of the window louver blades to claimants’ two bedrooms beside the defendant’s transmission mast.
(iii) Digging of a borehole to replace the one dug by the claimants which was polluted by the diesel oil from the defendant’s generator.

The Appellants relied on paragraph 29, above to fortify themselves that the Respondent’s acts proved that the remedial items or facilities to ease the pains of the Appellants were clear acts of acceptance of the negligence of the Respondent on the Appellants. It was further submitted by counsel that Respondent in paragraph 26, accepted clear acts of acceptance of negligence of the Respondent on the Appellants. And that DW1, admitted on oath in paragraph 31, that it carried out erection of perimeter fence, replaced the generating sets on site with new sound proof Mikano Generators. They secured the connection of the site to PHCN power supply, to lessen the use of generation sets.

The contention of the Appellants, referring to all their facts above is that, the Respondent embarked on remedial facilities for and on behalf the Appellants, same pleaded by respondent, it was clear and proved by the Appellants that the Respondent indeed constituted acts of negligence and nuisance on the Appellants that warranted the granting of the claims of the Appellants against the Respondent by the lower Court. That they proved both negligence and nuisance was premised on their pleadings, and evidence before the trial Court.

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 EKPO (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: have the Appellants discharged the burden of proof placed on them by law? They asserted, so they have to prove the assertion. I will now examine the pleadings and the evidence adduced before the Court. The Appellants pleaded facts in support of their claim that the alleged act of nuisance was committed against them by the Respondent. The relevant Paragraphs of the Further Amended Statement of Claim are 1,2,3,4, 5, 6, 7,8,9,10,11,12, 13, 15,16, 18,19,20,21,22, 23, 24, 25, 26, 29,31, 33,34, 37, 38, 40, 43. The Respondent, responded to these averments in Paragraphs 1,3- 49 of the Statement of Defence.

The learned trial judge, whilst accessing and evaluating the evidence adduced from the parties, discountenanced the evidence of CW1.

The CW1, (2nd Appellant) his written statement on oath is the main bone of contention in that it contravened the oaths Act. His whole testimony was discountenanced by the trial judge. The written depositions of CW1, dated 18/10/16 reveals that it had no oaths clause.
It is trite that the last paragraph in any affidavit should read thus: “That l make this oath conscientiously believing same to be true and in accordance with the Oaths Law”. Order 3, Rule 2 (i)(c), of the High Court of Ekiti State (Civil Procedure) Rules, 2011 prescribes that a written statement must be on oath. Section 13 of the Oaths Act provides as follows: “lt shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath , to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
The First Schedule provides as follows: l (name supplied) do solemnly and sincerely declare that l make this solemn declaration conscientiously believing same to be true”… This was obviously missing in the written deposition of CW1, with the implication that the written deposition fell short of the standard prescribed under Section 13 of the Oaths Act . What is the effect of this?
In the instant case, the learned trial Judge discountenanced the evidence of CW1, in his written statement on oath. The decision of the learned trial Judge was therefore premised on the incompetence of the Written Statements on Oath of the Appellants’ first witness CW1. The learned trial Judge found that those Written Statements on Oath, did not comply with Section 13 of the Oaths Act. He therefore premised on Section 13 of the Oaths Act rightly discountenanced the written statements on oath of the Appellants’ CW1.
It is my understanding, that the Evidence Act, and the Oaths Act deal with substantive law, and not matters of mere procedure. Their provisions must therefore be complied with as a matter of law. Non-compliance with their provisions have the effect of rendering any evidence admitted in breach thereof invalid.

Being matters of law, they could be raised at any time, even at the final address before the Court of first instance, and on appeal before this Court. Their provisions, save in a few exceptions cannot be waived, as once it is raised at any stage of the proceedings, the Court has a duty to attend to it. It is for the above reasons that I agree that the decision of the trial judge is unassailable, and it ought not to be disturbed. I rely on the decisions of this Court in the cases of ELDER BIODUN MAJEKODUNMI & ORS V. MR. AKANBI NOFIU OGUNSEYE 2007 LPELR-42547 (CA); GUARANTY TRUST BANK (GTB) PLC V BARRISTER AJIBOYE AYODEJI ABIODUN (2017) LPELR 42551 (CA).
In this case where there is no evidence from the Appellants to prove the tort of nuisance against the Respondent, l am persuaded that this decision of the trial judge should not be disturbed. It is the correct position of the law.
In the circumstance, l resolve this issue against the Appellants.
This appeal being unmeritorious is hereby dismissed.
I assess costs at N50,000.00 in favour of the Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Hilda Eyitayo Oni Esq. For Appellant(s)

Femi Sarumi Esq. For Respondent(s)