Visafone Communication Limited V. MR. Gbenga Onamusi (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.Mobile & Wireless

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 onCommunications & Media Studies

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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

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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.