Helios Tower Limited V. MR Isiaka Bello & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Ekiti State, sitting at Ado-Ekiti; delivered by A.L. Ogunmoye, J. on the 2nd day of May, 2014 wherein the trial court found in favour of the claimant/1st Respondent herein.

The 1st Respondent herein who was the claimant at the trial court, commenced this action by filing an Amended Writ of Summons and Amended Statement of Claim dated 23rd of January, 2012 claiming against Defendant/Appellant, the following reliefs:-

“(a) A declaration that installation of the transmission mast near the claimant’s residential building at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti by the defendants constitutes a trespass, nuisance and wrongful interference with the claimant’s interest in the use or enjoyment of his property.

(b) A sum of N100 Million being general damages for the nuisance, wrongful interference with the claimant’s interest in the use or enjoyment of his property and imminent negative biological effects caused the plaintiff and members of his family as a result of the installation of mobile phone transmission mast by the defendants’ agents near plaintiff’s residential building situate, lying and being at No.3, Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State.

(c) An order of perpetual injunction restraining the defendants, their agents, servants and privies from operating the mobile phone transmission mast installed near the plaintiff’s residential building situate, lying and being at No. 3, Adebayo Street Behind Dental Centre, Ado-Ekiti, Ekiti State and from further interfering with the plaintiff’s use and enjoyment of his residential building situate, lying and being at No. 3 Adebayo Street, Behind Dental Centre, Ado-Ekiti, Ekiti State”.

Parties filed and exchanged pleadings. The case of the Claimant/1st Respondent as could be deduced from the evidence placed before the court are that:-

a. he is the owner of a bungalow building of three bedroom flat;

b. the appellant in conjunction with the 2nd respondent installed a transmission mast besides the said bungalow building which made it difficult for him and members of his family to sleep therein as a result of emission of noise and micro-wave from the transmission mast;

c. that erection of the transmission mast by the appellant and the 2nd respondent was interfering with his use and enjoyment of the said residential building. Consequently, he had to relocate his family to another place and abandoned the said residential building;

d. he tendered various documents particularly his letter of complaint to the regulatory bodies as well as photographs of the transmission site.

The 2nd respondent who was the first defendant before the trial court claimed and the trial court so ruled that it was an independent contractor and ought not to have been joined to this suit. See Page 190 of the record. There is no appeal against this finding.

Appellant on the other hand in his defence stated that it complied with all the conditions precedent to the installation of the transmission mast very close to the 1st respondent’s residential building, having obtained approvals from various regulatory bodies. The trial court found as a fact that the appellant only applied for necessary approvals from various regulatory bodies after the installation of the transmission mast besides 1st respondent’s residential building.

See pages 208-209 of the record. After the close of evidence, the trial court ordered the parties to file their respective written addresses. Counsel adopted their respective addresses. Following conclusion of the evidence, the trial court on 2nd May, 2014 rendered Judgment in favour of the claimant/1st Respondent.