IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY, THE 12TH DAY OF NOVEMBER, 2021
BEFORE THEIR LORDSHIPS:
OBIETONBARA OWUPELE DANIEL-KALIO JUSTICE, COURT OF APPEAL
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/1113/2016
BETWEEN:
MR. SUNDAY POPOOLA ……….. …. ……. … APPELLANT
AND
1.MTN NIGERIA COMMUNICATIONS LIMITED
2. ALHAJI LAYODE
3.NIGERIA COMMUNICATIONS COMMISSION………RESPONDENTS
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This is an appeal against the judgment of the High Court of Lagos State (Coram: Hon Justice B.A. Oke-Lawal) delivered on 9th June 2016. The writ of summons and statement of claim filed on 29th October, 2012 were amended on 20th March, 2015. By the said amended writ of summons and statement of claim, the Appellant, as plaintiff, claimed against the Respondents, as Defendants, as follows:
“(a). A Declaration that the 1st Defendant is in breach of the basic requirements and specifications of erecting a Communication Mast at No. 34, Layode Crescent, Off Wema, Olodi- Apapa, Lagos State and the breach thereof is a subsisting trespass to the property of the claimant and same caused damages and due to the continuous trespass, still causing a continuous damage to the said property of the Claimant at No.32, Layode Crescent, Off Wema, Olodi- Apapa, Lagos State.
(b). A Declaration that the License granted by the 3rd Defendant to the 1st Defendant should immediately be revoked and set aside while the 1st defendant should declare the details of its agents, privies or employees responsible for the manipulated report presented by the 1st defendant to fraudulently obtain the license for the mast installation to the 3rd defendant.
(c). A Declaration that pursuant to trespass and continuous trespass of the 1st Defendant, the 1st & 2nd defendants are jointly and severally liable to pay special and general damages to the Claimant in this suit.
(d). A perpetual Injunction restraining the 1st & 2nd Defendants whether by themselves their servants, agents and privies or anybody otherwise, however described from trespassing, intermeddling or committing further acts of trespass on the aforesaid properties described in reliefs a & b above, until, the minimum requirements and specifications as to distance and standard of erecting a communication mast at the said location are met and duly certified by the 3rd Party or any other regulatory agency.
(e) Cost of the action to be awarded against the 1st & 2nd Defendants in favour of the claimant.”
The Appellant filed his Brief of Argument on 10/03/2017 but was
deemed properly filed and served on 15/01/2019. The 1st Respondent’s Brief
of Argument filed on 30/03/2017 was equally deemed properly filed and
served by an order of court made on 15/01/2019. Appellant’s Reply Brief
filed on 23/09/21 was also deemed properly filed and served on 27/09/2021
when the appeal came up for hearing. That same date, the name of the 2nd
Respondent, Alhaji Layode, was struck out on account of his demise, on the
Application of the Appellant. Both the Appellant and the 1st Respondent
have filed notices of Preliminary Objections. The 3rd Respondent, who was
represented in court by U.N. Meme, Esq, did not file any Brief.
In the Appellant’s Brief of Argument, Adebayo I. Adesanya Esq who
settles same, identified and formulated five issues for determination, as
follows:
b. Whether the non-admittance of the report/letter by one Unity Integrated Concept in evidence led to a miscarriage of Justice (Ground 2).
c. Whether the Lower Court was right to have addressed the claim of the claimant as a tort of Negligence rather than prove of the tort of Nuisance, going by the pleadings and evidence before the Honourable Court? (Grounds 3 & 4).
d. Whether the court could reply on the uncontroverted and uncontradicted paragraphs of a written statement on oath without more in prove of a material fact? (Ground 5).
e. Whether the Appellant by the nature of the pleadings and evidence led at the trial are entitled to the relief sought by their claim at the Lower Court? (Ground 6).
On his part, Idowu O. Benson, Esq formulated three issues for determination
in the 1st Respondent’s Brief of Argument, viz-
“a. Did the Appellant (Claimant) discharge the evidential burden of proof placed on the Appellant to satisfy the lower court that the 1st Respondent caused damage to property.
The Appellant’s brief was adopted by O.E. Udhebulu Esq.
On the first issue formulated by the Appellant, i.e., issue (a), learned counsel argued that the lower court neglected to address the vital contents of Exhibits A3, A4, A6 and A8 which neglect led the court into arriving at a wrong conclusion by seeking for documents not tendered or pleaded to prove communication between the Lagos State Ministry of Education and the Defendant. This court is urged to evaluate Exhibits A3, A4, A6 and A8 in order to arrive at the conclusion that the Appellant has established a case of nuisance at the lower court and to proceed to resolve the issue in favour of the Appellant. Reliance is plead on the case of Joseph Sammy & Sons Ltd Vs. Agbonlahor 25 W.R.N. We are also urged to take into consideration the fact that the communication mast was sealed up by the Lagos State Ministry of Environment upon the complaint of the Appellant and that at no time did the 1st Respondent deny the nuisance that led to the seal up order.
Issue (b) formulated by the Appellant is “whether the non-admittance of the report/letter by one Unity Integrated Concept in evidence led to a miscarriage of justice.” Learned counsel for the Appellant submitted that the rejected report being a private document directed at the Claimant/Appellant concerning the property of the Appellant is admissible and that the fact that the document was not tendered by the maker only go to the issue of weight to be attached to it. The court is referred to pages 151-154 of the Record for the said report and page 270 for the Ruling of the lower court refusing to admit the report in evidence. He submitted that the law has moved away from the era of technicalities and that relevancy has been the hallmark of admissibility, calling in aid the authorities of Fidelity Bank Plc vs.
Manye (2012) FWLR, Pt.631 at 1412 and Dongari vs. Sa’anum (2014) 19 WRN @ 181. The court is urged to hold that the non-admission of the Report by Unity Integrated Concept occasioned miscarriage of justice to the Appellant.
On issue C, learned counsel drew the attention of this court to the Amended Statement of Claim of pages 223-230 of the Record, particularly pages 228-229 wherein the Appellant pleaded the tort of nuisance caused by the 1st Defendant/Respondent, and submitted that the lower court was wrong when it dwelled more on the tort of negligence at pages 309-311 of the Record of Appeal. He argued that the error committed by the lower court in addressing the principles of negligence and treating the Appellant’s case as a case of negligence instead of treading it as a case of nuisance as per his pleading has led to a miscarriage of justice. He contended that the findings made by the lower court on the principles of negligence are perverse and that this court ought to interfere with the said findings by assessing and re-evaluating the evidence. Reliance was placed on Emika vs. State (2015) EJSC, Vol.6 page 64; Anieke vs. Nweke (2013)16 WRN; Yakubu vs. U.B.A. PLC (2012) 25 W.R.N., VOL 25 and Atolagbe vs. Shorun (1985) NWLR (Pt.2) 360.
Issue (d) is “Whether the court could rely on the uncontroverted and uncontradicted paragraphs of a written statement on oath without more in prove of a material fact.” Learned counsel argued that the evidence of the Claimant/Appellant as contained in his written deposition on oath at pages 129-135 of the Record of Appeal has neither been controverted nor contradicted, especially where he stated that the generating set of the 1st Defendant/Respondent was very noisy, vibrating and producing poisonous emissions, which led to the sealing of the mast station. He submitted that there was no evidence on the other side of the scale to defeat the evidence of the Claimant/Appellant whose building, where he lives, is beside the communication mast site. This court is again urged to re-evaluate the evidence as the lower court did not appreciate the evidence before it. On the rule applicable to unchallenged evidence, counsel cited and relied on Owners of M/V Gongola Hope vs. Smurfit cases Ltd (2007) ALL FWLR (pt. 388) 1005, and urged the court to resolve this issue in favour of the Appellant.
With regards to issue (e), below is the submission of Mr. Adesanya:
5.01 My Lord, it is not in doubt by the 1st defendant that there was a sealing up of the communication mast station by the Lagos State Ministry of Environment and same was pursuant to the nuisance committed by the 1st defendant at the said station, and this fact is evident from the pleadings and evidence of the parties. We further submit that if the 1st defendant doubts the reason for the sealing up of the mast station, it would have challenged same had it been there was another reason for same, hence the burden of proof is minimal, which was reasonably discharged by the appellant going by its pleadings and evidence in the lower court, it is trite that on the balance of probability the appellants proved their claim at the Lower Court, hence are entitled to the relief sought via their claim as well, we therefore urge Your Lordships to so hold.
He urged the court to grant the relief sought by the Appellant.
Learned counsel for the 1st Respondent, I.O. Benson Esq, filed a notice of preliminary objection to the competence of Grounds 1, 2 and 5 as contained in the Appellant’s Notice of Appeal. He argued the objection in the 1st Respondent’s Brief of Argument. It is submitted that ground I of the Notice of Appeal is baseless as it does not emanate from any of the findings of the lower court, that the finding quoted in ground I constitutes an arbiter and not a ratio in the judgment as no specific finding or reference was made by the lower court ignoring or not considering Exhibit A6. He argued that the pronouncement on Exhibit A6 was not appealed against by the Appellant. The court is urged to strike out ground I. On ground 2, the 1st Respondent premised his objection to its validity on the basis that the Ruling of the lower court rejecting the report by Unity Integrated Concept was delivered on 7th May, 2015 while the Notice of Appeal was filed on 15th August, 2016, more than a year after the Ruling complained of. Counsel for the Respondent argued that a ground of appeal against the said Ruing can only be valid when filed within 14 days or outside 14 days with leave of court. He urged the court to strike out ground 2. 1st Respondent’s quarrel with ground 5 of the Notice of Appeal is that it does not emanate from the judgment of the lower court in that the lower court did not make any specific finding as to the cost of materials purchased, if any, by the Appellant. He referred to the cases of Olonade vs. Sowemimo (2014) 48 W.R.N. page 6; Atoyebi vs. Govt of Oyo State (1994) 5 NWLR (Pt.344) 296 @ 305, and urged the court to strike out ground 5 as same is incompetent.
With respect to the appeal proper, Mr. Benson submitted on issue I formulated by him, which I had reproduced earlier in this judgment, that the Appellant has failed to discharge the burden of proof placed on him by Section 131 and of 133 of the Evidence Act, 2011. He contended that the Appellant misconceived the principle regulating on whom the burden of proof lies in civil cases by not attempting to discharge the onus on him. He referred to the case of Iloabachie vs. Iloabachie (2005) 35 W.R.N. para 9 page 10. He submitted that the Appellant pleaded the non-compliance of the 1st Respondent to building regulations but failed to prove the regulation. That the Appellant pleaded damage done to his building but failed to prove same by way of pictures of the damaged building professional report concerning the damage. He relied on Taisei (West Africa) Ltd & Anor vs. Xtuodos Services Nig. Ltd & Anor (2002) FWLR para. 9, page 958 on the rule that damages must be pleaded before evidence can be led on it. Learned counsel submitted that counsel for the Appellant was of the erroneous view that the evidential burden rests on the Defendants/Respondents to establish compliance to mast building regulations. It is submitted for the 1st Respondent that the lower court has properly evaluated the evidence and came to the conclusion that the essential ingredients of proof were lacking. He urged this court not to interfere with the finding of facts by the trial Judge, relying on Edosa vs. Zaccala (2005) 34 W.R.N. para 4 page 110 and Haruna vs. A.G. Federation (2012) 9 NWLR (Pt. 1306) 419 @ 448. It is further argued for the 1st Respondent that the failure of the Appellant to produce a witness(es) from the Lagos State Ministry of Environment to testify on the correspondences written by the Ministry and be cross–examined on the contents of the said correspondences was fatal to the case of the Claimant/Appellant before the lower court, He further argued that Exhibit B, a letter from the Appellant offering the property for sale to the 1st Respondent, to which no response was resolved, has sealed the fate of the Appellant. Learned counsel submitted that the Appellant led no evidence in support of his claim of nuisance when he testified as CW1, as nuisance was only introduced into the Appellant’s suit via its Amended Statement of Claim after the close of trial. The 1st Respondent contended that the sealing of its site by the Lagos State Ministry of Environment coupled with the letter written by the Ministry to the Appellant are merely facts which the lower court could consider in determining nuisance, but are definitely not conclusive in establishing nuisance. Cited in support of this submission is the case of Neka B.B.B. Manufacturing Company Ltd VS. African Continental Bank Ltd (2004) 15 W.R.N. Pg 6, paragraph 4. He argued that with his admission under cross-examination that he is not a Structural Engineer, CW1 has confirmed that only a Structural Engineer could confirm the cause of the damage to his property and that his failure to call a Structural Engineer to testify at the lower court is fatal to his case.
On issue 2, it is submitted that it is trite law that not every error committed by a lower court would lead to intervention by the Appellate court, unless where the error committed materially changed the outcome of the suit – Ezirim & Ors vs. A.G. Imo State (2009) LPELR-8679 (CA); Osung vs. State (2012) LPELR- 9720 (SC).
Counsel submitted that irrespective of the head of claim (whether negligence or nuisance) the focal point, considered by the lower court was whether the Appellant was able to establish that he sustained any damage, i.e., whether the Appellant was able to establish that the 1st Respondent committed any act that caused him injury. It is the argument of counsel to the 1st Respondent that the accepted approach in tort related matters as the first consideration is whether an injury has occurred, and it is upon the ascertainment of the injury that the person responsible is determined. It is contended that the findings by the lower court that no injury to the Appellant was established has negated the need to further consider whether the injury was caused by nuisance or by negligence. He submitted that the errors committed by the lower court did not in any way affect the outcome of the suit as no injury was established to have been suffered by the Appellant. He referred to Atungwu vs. Okechukwu (2005) 9 W.R.N. pg.133.
1st Respondent’s counsel submitted with respect to issue 3 formulated by him that a claim for special damages is a claim for specific loses/which must be specifically pleaded and proved, and that in the instant case there was no specific pleading of special damages and neither was proved by the Appellant as the cost of repairs to the building was not even stated by the Appellant. He argued that since the lower court had found that the Appellant has failed to establish any injury, it was impossible for a finding to be made in his favour as to damages, whether general or special. Reference was made to the authorities of Adeosun vs. Afolabi (2004) 22 W.R.N. pg 159 para.10 and Niger Insurance Ltd vs. Ap Ltd (2005) 17, W.R.N. Pg. 133 para 6. This court is urged to dismiss this appeal and affirm the Judgment of the lower court.
In the Appellant’s Reply on points of law to the 1st Respondent’s Brief of Argument, Mr. Adesanya of counsel to the Appellant submitted, with respect to the preliminary objections to grounds 1 and 5 of the Notice of Appeal, that the law is trite that grounds of appeal ought to the read together with the particulars in order to decipher the gist of the Appellant’s complaint. He referred to chiadi vs. Aggo (2018)2 NWLR (Pt.1603) 175 S.C; and further submitted that the 1st Respondent’s objection to ground I is baseless and ought to be discountenanced in that the particulars gave life to the ground. He urged the court to hold that grounds I and 5 of the Notice of Appeal are competent. On the 1st Respondent’s objection to ground 2, counsel submitted in Reply that the objection is purely a misconception of the position of the law on this point. He argued that ground 2 of the Notice of Appeal which concerns wrongful rejection of evidence does not fall within the ambit of grounds that require leave. He contended that leave of court is not required before an Appellant can raise a ground that touches on admission and rejection of evidence. Counsel cited and relied on Okobia vs. Ajanya (1998) 6 NWLR (Pt.554) 348 @ 360 and Dumalin Inv. Ltd vs. BGL. PLC (2016) 18 NWLR (Pt.1554) 262. He urged the court, to hold that ground 2 is competent and to discountenance the objection of the 1st Respondent. Learned counsel also argued a preliminary objection to the competence of the issues formulated by the 1st Respondent at paragraphs 4.0-4.4 of his Reply. The argument therein is here by discountenanced as the Notice of preliminary objection upon which the argument is predicated has been withdrawn and struck out on 27/01/2021 during the hearing of the appeal.
In his response to the 1st Respondent’s Brief of Argument, Appellant’s counsel merely repeated his earlier argument that the decision of the lower court is perverse and that this court ought to interfere by setting it aside, as the lower court failed to make appropriate findings on the case of nuisance submitted to it for adjudication. On the issue of damages, it was contended in the Reply Brief that general damages need not be specifically proved once it is pleaded that some damage has been suffered by the claimant. He urged the court to hold that the Appellant’s claim for damages is valid and to proceed to allow the appeal.
RESOLUTION
I shall commence the Resolution of this appeal with the determination of the 1st Respondent’s objection to the competence of grounds 1, 2 and 5 of the Notice of Appeal. The objection to ground I is that the findings quoted therein is an orbiter and not a ratio in the judgment.
A ground of appeal is the complaint the Appellant has on the decision of the lower court. By the ground of appeal, the Appellant tells the Appellate court that he is not satisfied with the judgment of the trial or lower court. It is the totality of the reasons why the decision complained of is considered wrong by the party appealing. A ground of appeal is the error of law or fact alleged by an Appellant as the defect in the Judgment appealed against and relied upon to set it aside. See Dagaci of Dere & Ors vs. Dagaci of Ebwa & Ors (2006) LPELR-911 (SC); Ehinlawo vs. Oke (2008) LPELR -1054 (SC); Kubor & Anor vs. Dickson (2012) LPELR -15364 (CA);
It is trite that a good and competent ground of appeal must constitute a complaint against the decision. Whether or not the complaint will succeed is immaterial to the competence of a ground of appeal so long as the ground is couched from the judgment appealed against. Particulars of error in a ground of appeal is part of the ground of appeal, they are related. The particulars are designed to elucidate and advance the complaint in the ground. The function of particulars in a ground of appeal is to bring to the fore the actual nature of complaint against the decision of the lower court so that the other side can appreciate the complaint of the Appellant. See GTB PLC vs. Innoson Nig. Ltd (2014) LPELR-22605 (CA); Agbara Estate Ltd vs. Odejayi (2010) LPELR-3650 (CA).
It is equally trite law that a ground of appeal must necessarily be an attack on the ratio decidendi of the decision of the lower court. A ground of appeal which digress from the ratio decidendi to attack an orbiter dictum is incompetent. See Mbadike & Ors vs. Lagos International Trade Fair Complex Management Board (2017) LPELR-41968 (CA); Okafor vs. Abumofuani (2016) LPELR-40299 (SC); CCB PLC & Anor vs. Ekperi (2007) LPELR-876 (SC).
Ground I of the Appellant’s Notice of Appeal reads:
“ The learned trial Judge misdirected itself in law, having made findings that the importance of documentary evidence is that it can be used to resolve an issue on which there is conflicting evidence and that in the interpretations of a document, oral evidence will not be admissible among other things to contradict or alter it where the document is clear and unambiguous…..Yet there was no evaluation of Exhibit A6, which clearly states thus”…..”I am further directed to inform you that it is your right to institute an action in court against MTN since the ministry has taken all the necessary steps to prevail on it to abate the nuisance but to no avail.”
Contrary to the above quoted ground of appeal, the trial Judge did not make any “finding” in the statement quoted above, as alleged by the Appellant, he was merely restating the law as it relates to the importance of documentary evidence without relating it to the facts of the case. The word “finding” has been defined as conclusion reached after a judicial inquiry. The restatement of legal principles quoted above cannot by any stretch of imagination be considered as finding. In the same page 11 of the Judgment as contained at page 309 of the Record of Appeal, the trial court also restated the principle of law on the importance of a vital witness to a proceeding as well as the principle of law on the onus of proof, which is always on a claimant. The lower court stated:
“A vital witness is a witness whose evidence may determine a case one way or the other. The failure to call a vital witness by a party is total to the case of such party. IMHANRIA V. NIGERIA ARMY (2007) 12 NWLR (PT.1053) 76.
The importance of documentary evidence is that it can be used to resolve an issue on which there is conflicting evidence and that in the interpretation of a document, oral evidence will not be admissible among other things to contradict or alter it where the document is clear and unambiguous. BUNGE V. GOV. OF RIVERS STATE (2006) 12 NWLR (PT.995) 573 AT 616-617.
The claimant has the burden of proving his case upon his evidence and he cannot rely on the weakness of the defendants’ case.”
In all of these legal propositions as reiterated by the lower court reference was not made to the facts of this case nor is any decision made. Those restatements of the law are bare, they have not been fleshed with the facts of the case and therefore do not constitute the ratio of the decision of the lower court to warrant the framing of a ground of appeal therefrom. A ground of appeal can only be predicated on the ratio decidendi and not on a bare restatement of legal principle or orbiter dictum. It is settled law that for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and must constitute a challenge to the ratio of the decision on appeal. Ground one in the Appellant’s Notice of Appeal did not attack the ratio of the decision appealed against, and for that reason, it is invalid and incompetent. Ground one of the Notice of appeal is accordingly struck out for being an invalid and incompetent ground.
The 1st Respondent also objected to the competence of ground 2 of the Notice of Appeal on the ground that the decision to reject the report by Unity Integrated Concept was an interlocutory decision and therefore the Appellant requires leave to appeal against it as the time within which to appeal has since lapsed. It is settled in a long line of decided authorities that the decision to admit or exclude evidence during trial forms part of the main trial and a complaint against wrongful admission or exclusion of evidence may be included in an appeal against the trial decision without the necessity for leave. In Onwe vs. Nwaogbuinya (2001) 3 NWLR 406 @ 418, the supreme court held:
“A decision made by the trial court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision….Thus, a party wishing to appeal against the judgment of the trial court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. Both are fundamental as the error might occasion a miscarriage justice.”
I am in agreement with learned counsel for the Appellant that the objection to ground 2 is a misconception of the position of the law on this point. I need to point out that section 14 of the Court of Appeal Act, 2016, which requires a party to seek for and obtain leave before filing an appeal against an interlocutory decision of the High Court (Federal and State), does not apply to cases of wrongful admission or wrongful rejection of evidence as such decision form part of the main trial, and therefore not interlocutory. It is in this light that the case of Kakih vs. PDP & Ors (2014) LPELR-23277 (SC) cited and relied upon by learned counsel to the 1st Respondent, is distinguishable with the instant appeal and therefore inapplicable. In that case, ground 4 of the Grounds of Appeal challenged the interlocutory ruling of the Federal High Court delivered pursuant to a notice of motion to file additional list of documents and call additional witness, filed four months after the Ruling. Here, the ruling appealed against is not interlocutory. Furthermore, the decision of the lower court to admit or exclude evidence being part of the main case, can be appealed against within 90 days of the final judgment without leave. For the afore stated reasons, I find that the 1st Respondent’s objection to ground 2 of the Notice of Appeal is misconceived. It is hereby overruled and dismissed.
1st Respondent also objected to ground 5 on the basis that the said ground did not emanate from the judgment of the lower court. At page 308 of the Record of Appeal, the lower court in its judgment had this to say:
“Thirdly, he stated that the whole building was reinforced in December 2006. There is no evidence to support this to show cost of materials purchased etc. The evidence of the collapsed tank is also not supported by evidence. There is no photographs of the building to buttress the claims of the claimant since the defendant denied same.”
The above excerpt from the judgment of the lower court is a clear finding of fact against whom an appeal can be lodged by an aggrieved party. And this is exactly what ground 5 of the Notice of Appeal seeks to achieve. The said ground is challenging the finding of the trial court referred to above. It is a valid and competent ground and I so hold. Objection to ground 5 is therefore dismissed.
Having thus resolved the preliminary objection, I shall now delve into the main appeal and consider all the issues formulated, in case my decision striking out ground I is found to be erroneous. Issues (a) and (c) deals with proper evaluation of evidence and ascription of probative value to them and when an Appellate court will interfere with findings of fact by the trial court. For purposes of clarity, I reproduce the issues here below:
c. Whether the Lower Court was right to have addressed the claim of the claimant as a tort of Negligence rather than prove of the tort of Nuisance, going by the pleadings and evidence before the Honourable Court? (Grounds 3 & 4).
Learned counsel for the Appellant contended that the lower court neglected to address and evaluate the contents of exhibits A3, A4, A6 and A8. This court is urged to evaluate the said exhibits. On issue c, counsel argued that the lower court was in error in treating the Appellant’s case as a case of negligence when in fact the suit was founded on the tort of nuisance. Learned counsel for the 1st Respondent on the other hand submitted that the exhibits were analysed by the trial court at page 309 of the Record before passing its verdict. He hammered on the erroneous view of the Appellant’s counsel that the burden of proof of compliance with the NCC guidelines rested on the 1st and 3rd (now 2nd) Respondents. Let me now examine the exhibits in question vis-à-vis the findings of the trial court. Exhibit A3 is a notice by the Appellant’s counsel to the 1st Respondent that the Appellant intend to seek redress in court; Exhibit A4 is a letter from the 1st Respondent to the Appellant’s counsel informing him that they are conducting investigation in to his complaint. The said exhibit is dated 8/5/12 and it is written “Without Prejudice.” Exhibit A6 is a letter from the Lagos State Ministry of Environment to the Appellant’s counsel reminding him of the Appellant’s right to seek redress in court since the Ministry has failed in its effort to prevail on the 1st Respondent to abate the nuisance complained of by the Appellant. Exhibit A8 is a letter from the Appellant’s counsel to the 1st Respondent demanding for compensation. The 1st Respondent did not respond to Exhibit A8. These are the exhibits learned counsel for the Appellant dissipated so much energy on and accused the lower court of not evaluating them. What is the probative value of these exhibits to the case of the Appellant before the lower court? Better still, have these exhibits i.e.; Exhibits A3, A4, A6 and A8 in any way proved the commission of private nuisance by the 1st Respondent against the Appellant and or his building? Is a letter by the Appellant to the Ministry of Environment complaining of nuisance sufficient proof that nuisance has been committed? Has the 1st Respondent’s letter to the Appellant’s counsel asking for time to investigate his complaint amount to proof or admission of the commission of the tort of nuisance? Neither of these letters nor a combination of all of them duly and properly evaluated will aid the case of the Appellant without evidence from the Ministry of Environment, the Ministry that investigated the Appellant’s complaint and prepared a report together with the expert evidence of Structural Engineers linking the damage done to the Appellant’s building to the activities of the 1st Respondent’s mast and generating set. Even the photograph of the Appellant’s damaged building ought to have been put in evidence for the assessment of the lower court. The Appellant did none of these but simply rely on his mere ipse dixit to prove facts that are technical in nature, even though he admitted under cross examination that he is not an Engineer. The heavy weather made of Exhibit A6 by the Appellant tantamount to a misconception on the value of that letter. Whether or not Exhibit A6 is written, the Appellant has unfettered right to file a suit to challenge any perceive wrong done to him, he doesn’t need the advice of the Lagos State Ministry of Environment to do that, which is what Exhibit A6 is all about.
The trial court has lamented the lack of report from any Structural Engineer and the lack of evidence from any of the experts who allegedly recommended that the activity of the Respondents must be stopped. The trial court also lamented the absence of the photograph of the damaged building which will indicate to the court the nature and extent of the damage. Here below is the observation of the trial court at pages 307-308 of the Record:
“The claimant witness during cross-examination stated that it is only a Structural Engineer that can state the cost of the damage to his property and that he is not a structural Engineer. There is no report from any Structural Engineer………… Secondly, the claimant stated that he called for the assistance of experts who recommended that the activity of the defendants must be stopped. The reports of those experts are not before the court. Thirdly, he stated that the whole building was reinforced in December, 2006. There is no evidence to support this to show cost of materials purchased etc. The evidence of the collapsed tank is also not supported by evidence. There is no photographs of the building to buttress the claims of the claimant since the defendant denied same”.
If this does not amount to proper evaluation of evidence, I don’t know what else should be. Exhibits A3, A4, A6 and A8 are not alternative to the lacuna observed by the trial court nor can they fill the void created by lack of evidence on the part of the Claimant/Appellant. In view of the foregoing, I hold that the allegation of non-evaluation of exhibits A3, A4, A6 and A8 has not been made out by the Appellant and I therefore see no reason why I should interfere with the finding of the trial court for not ascribing any utilitarian value to these exhibits.
On issue (c), Mr. Adesanya submitted that the lower court was wrong when it applied the principle of the tort of negligence in deciding the Appellant’s claim, which is predicated on the tort of nuisance. He urged the court to hold that the finding of the lower court on the principle of negligence is perverse. Mr. Benson for the 1st Respondent argued to the contrary that the Appellant led no evidence in support of his claim for nuisance as the entirety of the evidence of CWI said nothing about nuisance.
Nuisance has been 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. It is an act of omission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person(s). If the person whose right is so infringed is an individual the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance. See Adediran vs. Interland Transport Ltd (1999) LPELR -88 (SC). Like the tort of negligence, the tort of nuisance as a civil wrong has some elements to it. That is to say, for a claimant to succeed in a claim founded on nuisance, he has to establish some essential elements. In a claim in nuisance, a claimant must prove the injury suffered by him and establish a nexus between the injury and the nuisance. It is the proof of injury that entitles a claimant to a remedy. The existence of the nuisance per se does not provide a remedy.
I agree with the Appellant’s counsel that in the determination of the claim before it the lower court dwelled extensively on the tort of negligence. However, the question is whether by veering off, the lower court has caused miscarriage of justice to the Appellant. The case of the Appellant is that because of the nuisance caused to his property by the 1st Respondent’s mast and generating set, he suffers injury in that his building was badly affected by the vibration from the generating set of the 1st Respondent which caused him financial loss in reinforcing the building in 2006. In consequence, he claimed three declarations, perpetual injunction, special damages and general and aggravated damages. To start with, the items of special damages in the sum of N150,000,000.00 was neither pleaded nor proved as required by law. As for the damage done to his building, the experts from the Lagos State Ministry of Environment did not testify as to the nuisance and the resultant damage. The law on nuisance is that the existence of the nuisance alone without proof of injury, cannot entitle a claimant to a remedy. See Adediran & Anor vs. Interland Transport Ltd (supra). In the instant case, the Appellant has led no evidence in proof of his allegation against the 1st Respondent, which led to the dismissal of his claim by the lower court. He also failed to establish through evidence his entitlement to the damages claimed. The lower court was right in dismissing the claim for want of evidence, not withstanding its foray in to the tort of negligence. It is trite law that the judgment of a court once found to be correct, is not liable to be reversed merely because it was anchored on a wrong reason. See Grosvenor Casinos Ltd vs. Halaoui (2009) LPELR-1340 (SC); Amasike vs. The Registrar General, C.A.C. & Anor (2010) LPELR -456 (SC). In the final analysis, I resolve issue (c) against the Appellant.
Issue (b) is predicated on the rejection of the report tendered by the Appellant at the lower court. The Report was prepared by Unity Integrated Concept and signed by one Michael Onwuwa for Unity Integrated Concept and addressed to the Appellant. It is at page 151-154 of the Record of Appeal and titled:” VALUATION STRUCTURE DAMAGE AND PROBABLE REPAIRS OF MR. SUNDAY POPOOLA’S PROPERTY LOCATED AT NO. 32 Layode Street, Off Wema Crescent Olodi-Apapa, Lagos State of Nigeria” The document is undated. Mr. Benson of counsel for the 1st Defendant/1st Respondent objected to the admissibility of the Report for non-compliance with the provisions of sections 67 and 83 (I) of the Evidence Act. The objection was sustained and the Report marked rejected.
Now, section 83(I) of the Evidence Act provides:
“1. In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied-
(a) If the maker of the statement either
(i) had personal knowledge of the matter dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to be continuous record made the statement (in so far as the matter dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those maters; and
(b) if the maker of the statement is called as a witness in the proceeding:
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attention, or if all reasonable efforts to find him have been made without success.”
Generally, documentary evidence can only be tendered through the maker so that he can be cross-examined as to its contents. The philosophy behind this provision is that if a person who did not make the document tenders it, he cannot be cross-examined on it, since he does not know the contents of the document.
This general rule is however subject to some exception as provided for in the section of the Evidence Act quoted above, to the effect that a court is empowered do admit documents notwithstanding that the maker of the document is available but not called as a witness. See Igbodim vs. Obianke (1976) LPELR 1448 (SC). Similarly, a person to whom the document is made or addressed can also produce and tender it in court. See the case of Omega Bank Plc vs. OBC Ltd (2005) LPELR -2636 (SC), where the supreme court, per Tobi, JSC, said:
“I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all, relevancy is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so, a document could be admitted without the court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things.”
The Report by Unity Integrated Concept was prepared at the instance of CW1, the Appellant, and also addressed to him. He it was that produced and tendered the Report. Even though CW1 was not the maker of the report, the said Report is relevant, and having been pleaded, is admissible. The lower court was therefore in error to have rejected the Report. Accordingly, I resolve issue (b) in favour of the Appellant and hold that the Report by the Unity Integrated Concept tendered by CW1 is admissible and ought to have been admitted in evidence by the lower court. The report was wrongly excluded.
Issue (d) is whether the court could rely on the uncontroverted and uncontradicted paragraphs of a written statement on oath without more, in proof of a material fact. This issue like issues(a) and (c) also deals with the question of proof.
Counsel for the Appellant chose to proliferate the issues bordering on proof and evaluation of evidence in this appeal. It is the argument of counsel that the evidence of CWI as contained in his written statement on oath which he adopted, remains uncontroverted on the existence of nuisance which led to the sealing of the 1st Respondent’s mast by the Lagos State Ministry of Environment. What counsel failed to realize is that proof of existence of nuisance alone cannot entitle a claimant to a remedy. A claimant must proceed to prove actual injury suffered. The nature of injury the Appellant claimed to have suffered, i.e., damage to his building, and the resultant need to reinforce the said building is technical in nature. The Appellant as CWI admitted that he wrote a complaint to the Lagos State Ministry of Environment and that is the reason why the inspection and assessment of the damage was conducted by the Ministry. Unfortunately, the Ministry failed to come to court and testify for the Appellant. Similarly, the report prepared by the Ministry which led to the sealing of the mast was not tendered in court. These are not matters that can be proved by the narration of the Appellant alone. What is more, the valuation of the structural damage prepared by Unity Integrated Concept was not before the lower court. Evidence of these technical matters which will show the injury suffered by the Appellant are not before the court. Worse of all, the Appellant has not tendered the photographs of the damaged building in proof of the injury caused him by the activities of the 1st Respondent. Appellant’s mere statements in his written statement on oath is not sufficient proof of the injury suffered by him as to entitle him to a remedy.
Further to this, with respect to the 1st Respondent’s alleged non-compliance with the Guidelines of the National Communication Commission, the Appellant has woefully failed to produce the Guidelines before the lower court and discharge the burden of proof of how the 1st Respondent evaded the Guidelines in erecting its mast and generating set. DW1 denied this fact and asserted in his evidence that the 1st Respondent has duly complied with the specifications in erecting its mast. As I said earlier, the Appellant’s allegations and the nature of injury suffered by him are technical in nature which cannot be proved by his mere ipse dixit. Consequently, the finding of the trial court that the Appellant has not proved his case to entitle him to a remedy is unassailable. Issue (d) is therefore resolved against the Appellant.
Issue (e) is another repetition of issues (c) and (d). I adopt my earlier decisions in treating issues (a) (c) and (d) in resolving issue (e) against the Appellant.
Having resolved issues (a), (c), (d) and (e) formulated by the Appellant against him and issue (b) on the rejection of the Report on the state of the building, in his favour, what then is the appropriate order to make in the circumstance? In determining this question, I will have recourse to the provision of section 251 of the Evidence Act, 2011. The section provides:
The purpose of the above provisions is to determine in an appeal against a final judgment in a giving case, whether the piece of evidence that was wrongly rejected or admitted does not adversely affect the final judgment in some way. Whether or not a wrongly admitted or wrongly excluded evidence will lead to the reversal or affirmation of the judgment of the lower court by an appellate court wholly depend on its probative value to the case of the Appellant. But wrongful admission or exclusion of evidence per se would not by itself be a ground for reversing a decision where the Appellate court finds that the evidence so admitted or excluded cannot reasonably be held to have affected the decision, and that such decision would have been the same even if such evidence had not been so admitted or excluded. See State vs. Ogbubunjo & Anor (2001) LPELR-3223 (SC); Okoro vs. State (1998) 14 NWLR (Pt.584); Itu vs. The State (2016) LPELR -26063 (SC).
At paragraph 4.01 of his Brief of Argument, counsel for the Appellant informed this court that the Report by Unity Integrated Concept which was excluded by the lower court is at pages 151-150 of the Record of Appeal. The maker of the Report is one Michael Onwuwa. The Report contains the degree of structural damages to the Appellant’s property situate at No.32, Layode Street, Off Wema Crescent, Olodi- Apapa, Lagos State. The Maker of the Report was not called as a witness as same was tendered by the Appellant when he testified as CWI and who confirmed under cross-examination that he is not a Structural Engineer. One does not require a soothsayer to come to the conclusion that even if the lower court had admitted the Report in evidence, the Appellant, who tendered it cannot be cross examined as to the content thereof because he is not the maker of the statement in that report. It follows therefore that if CW1 cannot be cross examined on the content of the Report then no probative value can be ascribed to the content of the Report. In Omega Bank Nigeria Plc vs. OBC Ltd (2005) LPELR-2636 (SC), the Supreme Court explained the reason behind the necessity of calling the maker of a document as a witness, Per Tobi, JSC, as follows:
“Assuming I am wrong, (and I do not think so), let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead. (2) The maker can only be procured by involving the party in so many expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is at the root of admissibility of evidence.”
I am of the firm opinion that even if the lower court had admitted the excluded Report its decision would not have been different, as the said Report would not have added any value to the Appellant’s case. In fact, the lower court and this court would, on the principle of fair hearing, consider the Report as not worth the paper on which it is written, as the Defendants/Respondents would not have been afforded the opportunity to cross examined on the contents of the Report since the maker was not called as a witness. What I am trying to say is that if the Defendants/Respondents would not be afforded the opportunity to cross examine on the content of the Report due to the absence of the maker, then the court cannot rely on the Report as doing so will amount to denial of fair hearing to the Defendants/Respondents. Therefore, having resolved issues (a), (c), (d) and (e) against the Appellant, the exclusion of the Report by Unity Integrated Concept cannot be a ground for the setting aside of the judgment of the lower court. The appeal fails and is hereby dismissed. The judgment of the High Court of Lagos State in suit No. LD/1651/2012 delivered on 9th June, 2016, is hereby affirmed. Parties to bear their respective costs of this appeal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
O.E. Udhebulu for the Appellant
I. O. Benson for the 1st Respondent
U.N. Meme for the 3rd Respondent
CA/L/1113/2016 M.I. SIRAJO JCAPage
