Mtn Nigeria Communications Limited V. Mr. Ganiyu Sadiku (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO J.C.A. (Delivering the Leading Judgment)

By a writ of summons dated 25th March, 2009 and issued 11th March, 2010 and Statement of Claim dated 4th March, 2010 and filed on a date that is not legible, the plaintiff hereinafter referred to as the respondent commenced an action in suit nos. AK/83/2010 against the defendant hereinafter referred to as the appellant in the Ondo State High Court of Justice sitting at Akure for the following reliefs:

a. AN ORDER OF FORFEITURE by the defendant of the lease agreement between the plaintiff and the defendant in respect of the plaintiff (sic) land situate and being at 23, Isinkan Street, Akure, Ondo State, Nigeria for fundamental breach by the defendant of the condition of the lease to keep plaintiffs land in good condition.

b. AN ORDER directing the defendant to vacate and give up possession of the plaintiffs land situate at No. 23, Isinkan Street, Akure, Ondo State for fundamental breach by the defendant of the condition of the lease to keep the plaintiffs land in good condition.

c. A PERPETUAL INJUNCTION restraining the defendant either by itself, agents, or servants from further polluting of the plaintiff’s land situate and being at No. 23, Isinkan Street, Akure, Ondo State, Nigeria.

d. The sum of twenty million naira (N20,000,000) as general damages for negligence.

The appellant on his part filed its statement of defence and the respondent filed a reply to the appellant’s statement of defence.

Pleadings having been filed and exchanged the case proceeded to trial with the respondent testifying on his behalf and tendering 6 exhibits marked Exhibits A-F respectively. The appellant called one witness and tendered one exhibit marked Exhibit G. After taking addresses from the parties’ counsel, the trial Judge in a considered judgment delivered on 17th of October, 2011 granted all the reliefs of the respondent except that he awarded the sum of N50,000 as general damages. Being dissatisfied with the judgment, the appellant filed a notice of appeal on 20th October, 2011 containing five grounds of appeal.

In compliance with the rules of this court, the parties filed and exchanged briefs of argument. The appellant’s brief settled by ABIOLA OLAGUNJU ESQ., dated 13th March, 2012 and filed 14th March, 2012 was deemed properly filed and served on 20th September, 2012. Also the appellant’s reply brief dated 10th October, 2012, filed 18th October, 2012 was deemed properly filed and served on 5th February, 2013. The respondent’s reply brief settled by CHRIS MBAJIAKA ESQ. is dated and filed 20th September, 2012.

At the hearing of the appeal on 30th April, 2013 KINGSLEY OSIGWE ESQ. for the respondent while adopting and relying on their said brief urged the court to dismiss the appeal. He also informed the court that he raised and filed a Notice of Preliminary Objection dated and filed 20th October, 2012.The argument thereon was incorporated in their brief.

ABIOLA OLAGUNJU ESQ. for the appellant adopted and relied on their respective briefs and urged the court to dismiss the preliminary objection and to allow the appeal.

FACTS

The summary of the facts leading to this appeal is like this:

The respondent who is the owner of the property situate at No. 23 Isinkun Street, Akure, Ondo State, on or about the 17th of July, 2007 leased part of the property measuring 225 square metres for a period of ten years to the appellant. The said appellant used the leased portion to build a base station site for the provision of telecommunications service in consideration of the sum of N2, 777,777:77k (Two Million, Seven Hundred and Seventy Seven Thousand, Seven Hundred and Seventy Seven Naira, Seventy Seven Kobo) only.