VISAFONE COMMUNICATION LIMITED v. MR. GBENGA ONAMUSI (2016)

VISAFONE COMMUNICATION LIMITED v. MR. GBENGA ONAMUSI

(2016)LCN/8211(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of February, 2016

CA/I/142/2011

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE ROOTED IN THE GROUNDS OF APPEAL

It has become a trite practice in law that issues for determination must be rooted in the grounds of appeal which in turn must be a frontal challenge of an identifiable aspect of the decision appealed against. The situation in this case is on all fours with that in AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR PT 1314 p 40 @ 267-268, where the Apex Court stated thus: “….. Though the issue of jurisdiction can be raised at any time either in the trial Court or in an appellate Court, the right to do so like any other right is not absolute. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

APPEAL: THE FACTORS THAT INHIBIT THE RIGHT OF THE RESPONDENT TO RAISE THE ISSUE OF JURISDICTION

There are certain circumstances where the issue cannot be raised unless certain requirements are complied with. In the appeal there are two factors which inhibit the right of the Respondent to raise the issue of jurisdiction and by extension on the competence of the lower Court to determine the same. The first relates to the principle of formulation of issue in an appeal. By that principle, any issue for determination in an appeal not related to or based on a ground of appeal is not only incompetent but completely valueless to the determination of the appeal and must be ignored. See OMO VS JSC DELTA STATE (2000) 7 SC (PT II) 1; (2000) 12 NWLR (PT.682) 444. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

APPEAL: ISSUE FOR DETERMINATION; THE IMPLICATION OF RAISING AN ISSUE NO ARISING FROM THE GROUNDS OF APPEAL

The remedy for this anomaly has been well adjudicated upon in the Nigerian jurisprudence. It has been held time without number that where an issue for determination does not arise from any of the grounds of appeal, it must be struck out (Refer Awoniyi vs Council, Yaba College of Technology (2006) p.1645 @ 1655-1566). In the case of OKPALA V. IHEME (1989) NWLR PT 102, 208 NNAEMEKA AGU JSC held that: It is now settled beyond question that any issue raised or any argument advanced on an issue not arising from the grounds of appeal is incompetent. Likewise in the case of OBALA OF OTAN-AIYEBAJU V. ADESINA (1999) 2 NWLR pt. 590, 163; ONU, JSC opined that: An issue for determination in an appeal, it is maintained, must be related to and arise from the grounds of appeal filed. In AKERE v. GOVERNOR OF OYO STATE (2012) 12 NWLR 1314, 240, it was stated per NGUTA, JSC that: By that principle, any issue for determination in an appeal not related to or based on a ground or grounds of appeal is not only incompetent, but completely valueless to the determination of the appeal and must be ignored. It therefore means that issues not raised at the lower Court or derived from the grounds of appeal as filed by the Appellant are incompetent. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

PRACTICE AND PROCEDURE: THE IMPLICATION OF THE FAILURE OF THE DEFENDANT TO FILE A DEFENCE

I agree with the decision of the learned trial Court. The case of the Respondent was undefended; the Appellant took no steps to have it set aside. The Supreme Court per Niki Tobi JSC held in OKOEBOR VS. POLICE COUNCIL & ORS (2003) 12 NWLR PT. 832 @ 444 that: “The basic principle of law is that where a defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim…” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

APPEAL: THE PRINCIPLE OF NON-INTERFERENCE; WHEN CAN AN APPELLATE COURT INTERFERE WITH THE DISCRETION OF THE TRIAL COURT

The cross-Appellant challenges the exercise of discretion by the learned trial Judge. It is not in the character of this Court to interfere with such exercise except good and compelling reasons are shown which occasion miscarriage of justice. In the case of CBN v. AITE OKOJE (2015) 14 NWLR PT. 1479 p. 231 @ 13, 14 AND 15 of Mr. FELIX NWOYE ADIM v. NIGERIAN BOTTLING COMPANY & ANOR (2010) LPELR 181 (SC) is one in which the award of damages was challenged. The Apex Court held that An appellate Court may only interfere with an award of damages when the award is manifestly too high or too low or is based on the wrong principles of law. See AFRICAN NEWSPAPER LTD VS CIROMA (1996) 1 NWLR (Pt 423) 156. It is also the law, that the appellate Court ought not upset an award of damages merely because if it had tried the matter it would have awarded a higher or lesser amount. See JAMES VS. MIDMOTORS (NIG) LTD. (1978) 11-12 SC 31, ZIK’S- PRESS LTD VS. IKOKU (supra), WILLIAMS VS. DAILY TIMES (1990) NWLR (PT. 24) 110 the case of OLORITIMI VS. IGE (1993) 8 NWLR (Pt. 311) 257.? Per Musdapher JSC (pp17-18, Para F-A). The Court also reiterated the principles of non-interference with the exercise of discretion in these terms: “….the principle upon which an appellate of damages are well settled and were stated thus by Greer, LJ in FLINT VS. LOVELL (1935) 1 KB 354 at P.360 ?In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make, in the judgment of this Court an entirely erroneous estimate of the damage to which plaintiff is entitled. Per Musdapher, J.S.C. (P. 17). per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

VISAFONE COMMUNICATION LTD – Appellant(s)

AND

MR. GBENGA ONAMUSI – Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Justice Oyo State holden at the Ibadan Judicial division. It was the Hon. Justice S. A. Akinleye J who pronounced the decision on the 10th of February 2011.

The suit of the Respondent as claimant was uncontested. The Appellant was the Defendant at the trial Court. The parties will respectively be referred to simply as Appellant and Respondent.

Upon the five (5) grounds of appeal filed which Notice is at pages 40, two issues were raised for determination. From the issues raised it is necessary to peruse the grounds of appeal which are hereby reproduced without their Particulars:

1. The learned trial Judge erred in Law in awarding general the sum of N5 million (Five Million Naira) as damages in favour of the Claimant/Respondent.

2. The learned trial judge erred in law in ordering the removal of the Appellant?s mast No. IBD/032/C.0000083 and generators from plot 39, Akin Allen layout, Oluyole Ibadan within 14 days from the date of service of the enrolled order of the Court on

it.

3. The learned trial judge erred in law holding that the Plaintiff/Respondent has proved his case on the evidence placed before the Court when the evidence itself is inconsistent and incredible.

4. The learned trial Judge erred in law in granting an Order of perpetual injunction restraining the Appellant from operating a local station or using heavy generating set beside the Respondent?s building, when from the evidence before the Court there is no reasonable proof or ground why the Defendant/Applicant should be restrained from operating from the local station or using the generating sets on its premises.

5. The Judgment is against the weight of the evidence.

A brief account of the case before the trial Court is stated in the first few lines of the Judgment, I find the summary as an appropriate statement of the facts leading to this appeal and is hereby reproduced:

?Claimant?s claim against the defendant as indorsed in paragraph 28 of the Statement of Claim dated 2nd March 2010 are as follows:-

“(i) General damages in the sum of fifty Million Naira (50,000,000.00) for causing health hazard to the

plaintiff and his family; and for weakening the foundation of the Plaintiff?s building and causing cracks in the Plaintiff?s wall fence.

(ii) An order compelling the Defendant to remove her Telecommunication Mast No. IBD/032/C.0000083 and generators from plot 39, Akin Allen Layout, Oluyole Ibadan.

(iii) Perpetual injunction restraining the Defendant from operating the local station or in any way using the heavy generating set beside the Plaintiff?s building.?

?The writ of summons, statement of claim and motion on notice were served on the Claimant by leave of Court on the 1st of April 2010.

The defendant neither entered appearance nor filed its statement of defence.

By an application dated 9th June, 2010, the Claimant sought for Court?s order to set down the case for hearing after the expiration of the time limited for filling the statement of defence. The Court granted the order and set down the case for hearing with hearing notice ordered to be served on the defendant.

?When the case came up for hearing on the 7th of July 2010 the Court was satisfied that the defendant had been served with hearing

notice hence the case proceeded to hearing…”

Thus the matter was heard without an input by the Appellant.

The Appellant?s issues for determination are stated at page 2 of the appellant?s brief which was filed on the 16/09/15 of the same date but deemed filed on 26/10/15. The issues are:-

1. Whether upon a proper review of the proceeding of lower Court leading to its judgment of February 10, 2011, the judgment and order made against the Defendant/Appellant by the trial Court is rendered a nullity for failure of compliance with the provision of Section 97 and 98 of the Sheriff?s and Civil Process Act.

2. Whether having regards to the evidence adduced in the lower Court, the trial Judge was right to enter Judgment for the Plaintiff/Respondent and to have granted the reliefs sought. Put in another way, whether the judgment is reasonable having regards to the evidence before the Court.

The Respondent opened his brief of argument with a Notice of Preliminary objection and the argument in support of same. The preliminary Objection questions the competence of the two issues raised as not flowing from the grounds of appeal nor

from the decision of the Court. The Respondent?s brief was filed on the 30/10/15 dated 27/10/15.

Under the Preliminary objection, the learned Counsel submits that Appellant raised the issues which are totally alien to the grounds of appeal which subject were not raised before the trial Court.

It is the submission of the learned Counsel for the Respondent that the learned Counsel for the Appellant raised two fresh issues of admissibility of the reports admitted at the trial Court and also raised the issue of special damages which were never raised at the trial. The learned Counsel handed in and the cases of AWONIYI VS. COUNCIL, YABA COLLEGE OF TECHNOLOGY (2006) ALL FWLR pt.300 1645 at 1655-1656; ADENIYI v. OROA (2006) ALL FWLR pt. 1839 at 1853-1854; USUNG V. UYONG (2010) ALL FWLR pt. 523 1966 at 1981 in submitting that the issues must flow from the grounds of appeal.

The learned Counsel concedes that the issue of jurisdiction can be raised at any time of the proceedings, but it must flow from the proceedings. Further that the failure of the Appellant to seek the leave of Court to raise fresh issues on appeal render the issues incompetent and

liable to be struck out.

In response to the Preliminary objection, the Appellant?s Reply brief filed on the 18/11/15 incorporated the argument. It is the submission of the learned Counsel that the issue in the Appellent?s brief of argument is one of jurisdiction which can be raised at any stage of the proceedings even on appeal. That the issues raise a fundamental error which renders the processes by which the suit was commenced a nullity and that nothing could be built on it. The following cases were cited to buttress the argument. AWONIYI VS COUNCIL YABA COLLEGE OF TECHNOLOGY (2006) ALL FWLR (PT. 300) 1645 AT 1655 ? 1566; ADENIYI VS OROJO (2006) ALL FWLR (PT 324) 1839 AT 1853-1854. In USUNG VS UYONG (2010) ALL FWLR (PT 523) 1966 AT 1981 this Court said:

?Where an issue for determination does not arise from any of the ground of appeal, it must be struck out. An issue must be supported by or derived from at least a ground of appeal, otherwise it will be incompetent or disregarded in the determination of the appeal. It is not permissible to canvass and tender argument on issues having no bearing with any of the grounds of Appeal.

Any issue raised or argument adduced on an issue not arising from a ground of appeal is incompetent and liable to be struck out.”

This is one of those appeals in which the issue of jurisdiction is usually tauted menacingly as a magic pill. Can jurisdiction fly from the atmosphere into an appeal? what is the foundation from which the issue of jurisdiction stems? If it is a new issue, should the requisite procedure not be followed? In this appeal, the operation of the Sheriff and Civil Process Act, have been cited as having been breached. When did the breach occur? The grounds of appeal raised in the notice have been reproduced in this Judgment. None of the grounds bears any resemblance to issue one formulated by the Appellant. It has become a trite practice in law that issues for determination must be rooted in the grounds of appeal which in turn must be a frontal challenge of an identifiable aspect of the decision appealed against. The situation in this case is on all fours with that in AKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR PT 1314 p 40 @ 267-268, where the Apex Court stated thus:

“….. Though the issue of jurisdiction can be raised at any

time either in the trial Court or in an appellate Court, the right to do so like any other right is not absolute.

The first relates to the principle of formulation of issue in an appeal. By that principle, any issue for determination in an appeal not related to or based on a ground of appeal is not only incompetent but completely valueless to the determination of the appeal and must be ignored. See OMO VS JSC DELTA STATE (2000) 7 SC (PT II) 1; (2000) 12 NWLR (PT.682) 444. The issue for determination must flow from the ground or grounds of appeal?

In this case, the issue of jurisdiction did not arise from any ground or combination of appellant?s grounds of appeal. There was no cross-appeal where the issue could have been raised. Here the issue of jurisdiction raised, not by way of preliminary objection but as a substantive issue for determination is

grossly incompetent as it did not arise from or relate to, any of the appellants? ground of appeal.?

In the case of OKPALA V. IHEME (1989) NWLR PT 102, 208 NNAEMEKA AGU JSC held that:

?It is now settled beyond question that any issue raised or any argument advanced on an issue not arising from the grounds of appeal is incompetent.?

Likewise in the case of OBALA OF OTAN-AIYEBAJU V. ADESINA (1999) 2 NWLR pt. 590, 163; ONU, JSC opined that:

?An issue for determination in an appeal, it is maintained, must be related to and arise from the grounds of appeal filed.?

In AKERE v. GOVERNOR OF OYO STATE (2012) 12 NWLR 1314, 240, it was stated per NGUTA, JSC that:

?By that principle, any issue for determination in an appeal not related to or based on a ground or grounds of appeal is

not only incompetent, but completely valueless to the determination of the appeal and must be ignored.?

It therefore means that issues not raised at the lower Court or derived from the grounds of appeal as filed by the Appellant are incompetent.

Issue 1 is accordingly hereby struck out for being incompetent. It is instructive to note that the learned counsel to the Appellant failed to tie the issues to the grounds of appeal; this in spite of the fact that five grounds of appeal were raised from which two issues were distilled. This is not a good Practice.

On an issue not raised at the lower Court being raised for the first time or appeal, MUNTAKA COOMASSIE JSC, state in ONYEMAIZU VS. OJIAKO (2010) 4 NWLR PT. 1185 503 SC that:

?A point not taken in the trial but raised for the first time in the Court of Appeal should be most jealously guarded. At the discretion of the Court, a party may be debarred from raising a point which was not raised in the trial Court or in the Court below?”

The submission of the learned Counsel which is without an application for leave to raise a fresh point is weird. The value of such argument has long been addressed in the Apex Court by Eso, JSC who held that:

“However, the law is that where a point of law which has not been

taken in the Court below is put forward by an Appellant, for the first time in the Court of Appeal, that Court ought not to decide in his favour unless it is satisfied beyond doubt:

a. That it has before it all the facts bearing on the new contention as completely as if it had been raised at the lower Court i.e Court of first instance and;

b. That no satisfactory explanation could have been given in the Court below if it had been so raised.?

KALGO JSC in OFORLETE VS THE STATE (2000) 12 NWLR PT. 681, 415 was very emphatic in stating that:

“In this Court, no fresh issue or point shall be entertained without the leave of the Court having been had and obtained.”

The Appeal

Although Issue one has been struck down by the Preliminary

objection, this Court is not the final Court. I should however not belabor the Apex Court should this uncontested suit find its way up there.

It is the submission of the Appellant that the writ of Summon which was the bedrock of the decision of the trial Court was irregular and issued in contravention of the provisions of Sections 97 and 98 of the Sherriff?s and Civil

Process Act. The entire proceedings is therefore rendered null and void. The cases of TURAKI VS. DALHATU (2003) FWLR (PT. 170) 1378 AT 1405; FUNDUK ENGINEERING LTD VS. MC ARTHUR (1995) 4 NWLR (PT 392) 640 AT PAGE 651; MADUKOLU & SONS VS. NKEMDILIM (1962) 1 1 ALL NLR 587; (1962) 1 SCNLR 341; STATE VS. ONAGORUWA (1992) 2 NWLR (PT. 221) 33 AT PAGE 48; GALADIMA VS TAMBAI (2000) (PT. 677); GARBA & ORS VS. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550. (PAGES 3, 4, 5 of Appellant brief) are cited in support of the argument;

?Under this issue the Appellant relied on Sections 97 and 98 of the Sheriff?s and Civil Processes Act which he said is in pari material with Order 3 Rule 9 of the Oyo State High Court (Civil Procedure) Rules 2010 and argued that there was no endorsement for service out of jurisdiction nor any leave was obtained before the issuance of the Writ of Summons therefore, the trial Judge has no jurisdiction to entertain same.

It is submitted that contrary to the Appellant?s submission, neither the Sheriffs and Civil Processes Act nor Order 3 Rule 9 of the Oyo State High Court (Civil Procedure) Rules 2010

require a Claimant to obtain leave of the Court before serving a Writ outside jurisdiction; all what it requires is that it must be endorsed and on this we refer your Lordship to page 1 of the Record of Appeal where the Writ for service out of the jurisdiction after an order had been first had and obtained. See page 49 of the Supplementary Record of Appeal wherein the learned trial judge said:

“Order as prayed

Leave is hereby granted to the plaintiff/Applicant to serve the writ of summons and other processes on the defendant at her head office, 4th Floor, Zenon house, Ajose Adeogun Street, Victoria Island Lagos, Lagos State, a place outside the jurisdiction of this Court.”

There was no appeal against this decision. The law is trite that a decision not appealed against is binding on both the Court and the parties. See ANYADUBA VS NRTC (1992) 5 NWLR (PT 243) 535 @ 553; NWABUEZE VS OKOYE (1988) 4 NWLR (PT 91) 664 AT 679.?

Issue Two

It is the submission of the learned Counsel to the Appellant that from the evidence of the Respondent as Claimants, it is evident that he is a Volens and that as a general rule volenti non fit injuria.

That having volunteered to the foreseeable hazard arising from his action, the Respondent would not be entitled to any damages. That the entire reports tendered were made in anticipation of litigation and therefore made in breach of Section 91 (3) of the Evidence Act. The case of ARE VS IPAYE (1986) 3 NWLR PT 29 P416 is cited in support. In a prose/essay like presentation, the learned Counsel to the Appellant seeks to re-argue the defence of Appellant before this Court. The decision of the learned trial Judge on the issues raised are not highlighted.

The Respondent submits that where a Defendant fails to file a statement of defence he is deemed to have admitted the claim of the Plaintiff. Refers DINGYADI VS WAMAKO (2008) 17 NWLR PT. 116 PAGE 395 @ 431. What it means, argues the learned Counsel is that no issue has been joined between the parties.

By issue 2 of the Appellant’s brief of argument, the learned Counsel seeks to draw back the hand of time by arguing what should have been the cross-examination and defence of the Appellant before the trial Court in this Court.

?It is not contested that the suit of the respondent at the trial Court

was undefended the Appellant having failed, refused and refrained from contesting the suit. See HONIKA SAWMILL ( LTD) vs. MARY OKOJIE HOFL (1994) 2 SCNJ 86 @ 89, 97 & 98.

The learned Counsel submits that … from the evidence before the trial Judge, there is nothing to suggest that the Appellant has committed any tortuous act of trespass into the premises of the Respondent and as such it is a misconception by the trial Judge to have ordered the removal of the mast and generators from the premises of the Appellant/Defendant.

The learned Counsel further submits that the Appellant/Defendant is the occupier of the property where the mast and generating set are sited. That it is therefore a misdirection of law to have ordered that the equipment be removed from the property because it is trite law that an occupier is any person lawfully occupying the land as defined in the case of OGUNLEYE VS ONI (1990) 2 NWLR (PT.135) 745 (P. 181).

In this case, the occupier of the premises is the Appellant in view of the position in this case, submits that since the appellant is in lawful occupation of the premise where the mast and generators are installed, it

will amount to gross miscarriage of justice to order the removal of its equipment from the premises.

The Appellant is also irked at the order to relocate and submit that the order of the Lower Court to remove the mast and generators is against public interest. That the order if not set aside will set a bad precedent and could lead to public unrest in Nigeria, as it simply implies that all telecommunication masts within the residential neighbourhood in every community in Nigeria should be removed and all users of generators in their homes or offices should remove them from their premises. Submits that the order to remove the mast and generator from the premises of the Appellant is utterly against public interest and as such should be set aside.

Submits that an award of damages would have remedied the inconveniences that the presence of the mast and the generators would have caused the Respondent/plaintiff.

Some very graphic Exhibits were tendered allowing the virtual vision to accentuate the mental vision; the Exhibits are:- Exhibits H-B, B, B1, B2, B3, B4 and B5. They were pictures which showed the positions of two premises.

?The learned

trial Judge who saw and heard the Respondent was not in doubt as to the procedure to adopt in managing the suit of the Respondent. His lordship started off in these terms ….

“The defendant was served with all the processes in the suit including the hearing notices but it failed or refused to defend the suit. This makes the suit to be undefended …. The Court declared the learned trial Judge, was left with the unchallenged evidence of the Claimant…. With minimal proof.?

His lordship continued in these terms:

“In AGHA VS. I.G.P (1997) 10 (PT. 524) PAGE 1 317 AT PAGE 321 where evidence of a witness has not been challenged, contradicted or shaken under cross-examination and such evidence is in line with the facts so pleaded, the evidence must be accepted as the correct version of what was expected to be proved. In such circumstances, it is always open to the Court seized of the proceedings to act on the unchallenged evidence.” (p 31,32, 22)

See also OMOREGBE VS LAWANI (1980) – 4 SC 108 AT 112; MADUGA VS BAI (1987) 3 NWLR (PT 62) PAGE 535 AT 536.

The evidence led by the Claimant and his witness is materially in line with

his pleadings. I have no other choice than to accept it as being credible. I also accept all the exhibits tendered in this case.

I adopt the 2 issues formulated by Claimant’s Counsel and agree with Counsel’s submissions on same. There is no doubt that the evidence before me has shown that the mast erected adjacent to Claimant’s property has constituted nuisance to Claimants peaceful enjoyment of his property. I wish to highlight some of the effects of the erection of the mast adjacent to “claimant?s property as captured in Exhibits ?A?, ?C? ?C1? And ?D?.

In Exhibit A, which is the report of structural damage to Claimant’s property prepared by PW1 and dated 2nd November 2009, PW1 stated in paragraphs 5.0 and 6.0 as follows:

5.0 ‘TRANSMISSION OF VIBRATION FROM THE GENERATING MACHINE”

Vibrational forces are transmitted through the earth medium to the strip foundation of your fence and main building walls. The vibrational effect on the strip foundation is also transmitted to the walls thus weakening the bond between molecular stone dust/sand aggregate from which the block has been formed. A

continuous vibration led to thin cracks and if nothing is done to stop this vibrating effect, the cracks would continue to widen and eventually collapse and may pose danger to lives of residents in the building…”

Exhibit C, C1 and D highlighted the medical implications of the immediate environment of the Respondent with the continued presence of the Appellant.

His lordship decided as follows:-

?From the evidence before me, there is evidence of cracks in Claimant’s wall fence, weakening of the foundation of Claimant’s building and health hazards posed by the mast to the Claimant and his family as a result of which he vacated his building and rented an apartment for his accommodation in the sum of N250,000.00 per annum for 2 years.

It is the law that the award of general damages by a trial Court is discretionary and such discretion must be exercised judicially and having considered the circumstances of this case, the sum of N5,000,000.00 (Five million Naira) is hereby awarded in general damages in favour of the Claimant as against the defendant.

In view of the health hazards posed by the telecommunications mast erected by the

defendant to the health of the Claimant and his family, it is hereby ordered that the defendant shall remove its mast No:- IBD/032/C.0000083 and generators from plot 39, Akin Allen layout, Oluyole, Ibadan within 14 days from the date of service of the enrolled order of this Court on it.

Perpetual injunction is hereby granted restraining the defendant from operating the local station or using heavy generating set beside the Claimant’s building.”

The learned Counsel seeks to run a commentary on the decision of the Court. This type of practice must not be encouraged. I will cite a few examples:- Although the learned trial Judge made no award in special damages, the learned Counsel dedicated three pages of argument in the Appellant’s brief on the principles of the award of special damages. The Appellant tendered no title and purpose document to justify its usage of a piece of land in the middle of a residential area as an industrial area, yet he derides the decision of the learned trial Judge.

?The Appellant has decried the award and all the consequential orders made by the learned trial Judge. Maintains that there is nothing from the evidence

before the trial Judge to suggest that the Appellant has committed any tortuous act of trespass into the premises of the Respondent and as such it is a misconception by the trial Judge to have ordered the removal of the mast and generators from the premises of the Appellant. (p9 prg.4.25 of Appellant’s brief)

“The basic principle of law is that where a defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim…”

The said order on perpetual injunction is hereby set aside. All other orders made are hereby affirmed. This appeal is dismissed as lacking in merit.

CROSS APPEAL CA/I/142A/2011

The Cross-Appellant is unhappy with the paltry sum of N5,000,000.00 awarded to him in general damages in an uncontested suit when he sued for N50 Million.

?It is the submission of the learned counsel for the Appellant that the

award of Damages is a discretionary power to be exercised Judicially and judiciously. See YEMI SALAU V. MR. S.O. ARABA (2004) ALL FWLR (Part 204) 88 at Page 118.

Submits that there are certain criteria established by the Courts in assessing damages accruable in personal injury cases such as this. These were succinctly stated in the case of S.C.C. NIGERIA LIMITED & 2 OTHERS V. MRS ESTHER IGUERINOVO (2004) FWLR (PART 189) PAGE 1153, PARAGRAPHS D-G as follows:

?In personal injury cases, which involves pain and suffering, and loss or diminution of the enjoyment of life, personal loss would include every kind of harm and disadvantages flowing from the physical injury other than the loss of money or property; and it also includes loss or impairment of the integrity of the body; pain and suffering both physical and mental loss of the pleasures of life, actual shortening of life, and mere discomfort or inconvenience (underlining mine). General damages should be full and adequate which in each case will depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. In assessing what is fair and

reasonable, it is always appropriate for the Court to bear in mind previous awards made by the Court in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social economic and industrial conditions exist.”

The learned trial Judge relied on the case of CAMEROON AIRLINE V. OTUTUIZU (2005) 9 NWLR (Pt. 929) 202 and of the Record (Lines 9-12) held thus:

“From the evidence before me, there is evidence of cracks in claimant’s wall fence, weakening of the foundation of Claimant’s building and health hazards posed by the mast to the Claimant and his family as a result of which he vacated his building and rented an apartment for his accommodation in the sum of N250,000.00 Per annum for 2 years.”

Submitted that having appreciated the heads of losses suffered by the Appellant, it was wrong for the learned trial Judge to award N5,000,000.00 (Five Million Naira) only as general damages.

That there is uncontroverted evidence that the cost of demolition and reconstruction of the base raft foundation of the fence wall of the cross-Appellant’s house is N5,750,000 (Five Million, seven Hundred and Fifty Thousand

Naira only).

There is also the uncontroverted evidence that the cross Appellant and his family had relocated to a rented apartment

paying rent at the rate of N250,000,00 (two hundred and Fifty Thousand Naira Only) per annum for two years. i.e N500,000 (Five Hundred Thousand Naira). These two alone is N6,250,000 (six Million Two Hundred and Fifty Thousand Naira) submits that the Court failed to countenance the trauma suffered, and still being suffered including the health hazard from radiation and inhaling of fumes from the Cross-Respondent?s generator and loss of use of personal dwelling house of the Cross Appellant. Laments that although the Cross-Appellant gave the following evidence:

“Around April, 2009 I moved in fully to my house at plot 37/38 Allen Avenue the noise was unbearable, the doors, the sliding windows, the burglary proofs all were vibrating. When my complaint to my doctor was becoming too much, he asked me where I was living and I told him where I was staying. He said the high rate of my visit to his hospital in recent time could be as a result of sleepless nights.?

The learned trial Judge failed to take these

into consideration before awarding the sum of N5 Million which did not even cover the actual amount proved outside the damages suffered which were at large protested the Cross-Appellant.

The Respondent is totally opposed to any form of upward review of the award of N5 Million which it thinks was made in error in the first place. Cites the case of UMOETUK V. UNION BANK PLC (2001) FWLR (pt. 81) 1849, where the Court was of the view that Appeal Court may interfere when either the judge in assessing the damages applied a wrong principle of law such as taking into account some irrelevant factors or that the amount awarded is either ridiculously high (pg 1 of Respondent?s brief). On the authority of UBA Plc v. Ogunsanya (2003) 8 NWLR at page 128-129 Akintan, JCA. (Delivering the Lead Judgment)

?The conditions which must exist before an appellate Court could tamper with an award made by a lower Court, as in this case, are well laid down in judicial decisions. It must, to that end, be clearly shown that the trial judge in assessing the damages proceeded upon a wrong principle or on no principle of which is manifestly unwarranted, excessive, extravagant and unreasonable

in comparison with the loss suffered by the plaintiff in the case.”

Submits that the lower Court was wrong by awarding of the sum of N5,000,000.00 (Five Million Naira) by awarding general damage for unsubstantiated special damage and thus the award should be set aside by this Honorable Court. That the award of N5,000,000.00 (Five Million Naira) is unreasonable and ridiculously too high and should be set aside by this Honorable Court. That the Cross Appellant has not met the conditions to enable this Honourable Court increase the awarded sum. It is so clear from the cross Appellant?s prayer itself the claim was in fact a claim of special damage which was not proved as Appellant/Cross Respondent had earlier submitted and as contained in our grounds of appeal that the award need not to have been made in the first place.

FELIX NWOYE ADIM v. NIGERIAN BOTTLING COMPANY & ANOR (2010) LPELR 181 (SC) is one in which the award of damages was challenged.

The Apex Court held that

?An appellate Court may only interfere with an award of damages when the award is manifestly too high or too low or is based on the wrong principles of law. See AFRICAN NEWSPAPER LTD VS CIROMA (1996) 1 NWLR (Pt 423) 156. It is also the law, that the appellate Court ought not upset an award of damages merely because if it had tried the matter it would have awarded a higher or lesser amount. See JAMES VS. MIDMOTORS (NIG) LTD. (1978) 11-12 SC 31, ZIK’S- PRESS LTD VS. IKOKU (supra), WILLIAMS VS. DAILY TIMES (1990) NWLR (PT. 24) 110 the case of OLORITIMI VS. IGE (1993) 8 NWLR (Pt. 311) 257.? Per Musdapher JSC (pp17-18, Para F-A).

The Court also reiterated the principles of non-interference with the exercise of discretion in these terms:

“….the principle upon which an appellate of damages are well settled and were stated thus by Greer, LJ in FLINT VS. LOVELL (1935) 1 KB 354 at P.360 ?In order to justify reversing the trial judge on the question of the amount of damages it

will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make, in the judgment of this Court an entirely erroneous estimate of the damage to which plaintiff is entitled.?

Per Musdapher, J.S.C. (P. 17)

In this cross-appeal, the cross-Appellant seeks the order of this court reviewing upward, the award of general damages made by the learned trial Judge. I find this expectation untenable. The cross-Appellant in proving his case called evidence of damages and danger to his property and health.

He made no claim for special damages. He claims general damages of N50Million Naira. The learned trial Judge who had the advantage of seeing and hearing the party in person assessed and fixed his damages at N5Million

This Court cannot interfere with the award even if it would have decided differently from the trial Judge. The Cross/Appellant got what he proved before the Court. The trial Court was actually handicapped to do more than his Lordship did in the circumstance of the case.

?I must therefore

refrain from interfering with the award of damages made by the learned trial Judge.

An order in perpetual injunction cannot be maintained since the cross-Appellant’s exclusive ownership in property has not been established.

It suffices to order the Cross-Respondent to relocate, in the interest of the health of the Cross-Appellant.

The Cross-appeal is hereby dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I had read before now the judgment prepared by my learned brother Monica B. Dongban-Mensem, JCA. I concur with the reasoning and conclusion ably articulated in the said judgment.

From the evidence on record, it is not in doubt a case of nuisance had been established by the Respondent. The Respondent has cross appealed the judgment, especially challenging the quantum of damages awarded him by the Court below. In the case of Oriere v. Board of Management Eku Baptist Hospital (1978) 5-7SC p.15, the Supreme Court held that:

?The principles upon which an appellate Court will act in reviewing an award of damages are now well settled and can be summarized as follows. An appellate Court is not justified in

substituting a figure of its own for that awarded by the lower Court simply because it would have awarded a different figure if it had tried the case at first instance. Before the appellate Court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied wrong principle of law such as taking into account some irrelevant factor or leaving out of account some irrelevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage.”

In the instant case, the pecuniary claim made by the Respondent/Cross Appellant in paragraph 28 of the statement of claim was for:

“General Damages in the sum of Fifty Million Naira (N50,000,000.00) for causing health hazards to the plaintiff and his family; and for weakening the foundation of plaintiff’s building and causing cracks in the Plaintiff’s wall fence.”

There was no claim for special damages and no evidence on Special Damages could be adduced at the trial. After evaluating the evidence, the learned trial Judge succinctly stated the law on General Damages and went on to

conclude at page 35 lines 14-19 as follows:

“It is the law that the award of damages by a trial Court is discretionary and such discretion must be exercised judicially and judiciously. See Dahiru v. Kamale (2005) 9 NWLR (pt. 929) pg.8 at 53-54.

Having considered the circumstance of this case, the sum of N5,000,000.00 (Five Million Naira) is hereby awarded in general ‘the damages in favour of claimant as against the defendant.”

It is trite that the law gives the trial Court, who heard, saw and was therefore able to assess the witnesses that testified before him, a discretion in the quantum of damages to award. This Court can only intervene where it finds that the decision of the trial Judge is perverse or not supported by the evidence on record, in that a ridiculously high or low amount was awarded. The Respondent/Cross-Appellant who challenges the quantum of damages awarded him, had the duty to demonstrate to this Court the basis of his challenge of the quantum of damages awarded him. This he woefully failed to do; and therefore this Court cannot interfere with what was awarded him by the Court below.

?It is for the above reasons and the

fuller reasons articulated in the lead judgment that I concurred with this judgment. Accordingly, I also dismiss the appeal as lacking in merit. The Cross-Appeal is also dismissed.

I abide by the order on costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft form the judgment of my lord Monica Bolna’an Dongban-Mensem JCA and I agree with the reasoning and conclusions reached therein.

The appellant in spite of having been served with the processes chose to stay away from Court only to spring out like a sort of jack-in-the-box after judgment had been delivered against it. It attempted to raise a number of issues, which issues unfortunately were incompetent having not been rooted in any ground of appeal. Having failed to file a Statement of Defence, all that was required of the respondent/cross appellant i.e the claimant in the lower Court to succeed, was minimal proof since the evidence adduced by him remained unchanged.

It is trite law that the Court will accept minimal proof unless it is of such quality that no reasonable tribunal will believe it. See Baba v. Nigerian Civil Aviation

& Anor (1991) 5 NWLR Part 192 p. 388. The evidence adduced was not the type that was not to be believed. The judgment of the lower Court cannot be faulted. It seems to be a worrying trend that some counsel choose not to respond to hearing notices only to challenge before the Court of Appeal decisions reached against them on the ground of lack of jurisdiction. A challenge to jurisdiction is not a talisman as the appellant must have found out in this case.

I agree that the appeal lacks merit. It is dismissed and so also is the cross appeal for reasons well stated in the lead judgment.

Appearances

O.M Bolaji with him, O. AiyedeFor Appellant

AND

Babatunde Akinola with him, Toyosi Ayankoya (Miss)For Respondent