LawPavilion Online


Back

MR. FABIAN EKE v. MTN NIGERIA LIMITED

(2017) LPELR-42677(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of July, 2017

CA/E/383/2013


Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria


Between

MR. FABIAN EKE - Appellant(s)

AND

MTN NIGERIA LIMITED - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on the Law of Torts.

FACTS:
This is an Appeal against the Judgment of the High Court of Ebonyi State.

By pleadings and evidence, the Appellant stated that the Respondent has a telecommunication Base Station near his house which is powered by a diesel generator and that due to the negligence/carelessness of the Respondent in the handling of the diesel, diesel escaped from the Respondent's Base Station and contaminated his water well making it unusable for him and his household which caused him and his household great loss and discomfort. The Appellant's compound and the Respondent's Base Station share a common fence and the Base Station is on an elevated ground to the compound of the Appellant.

By a Writ of Summons dated 9th July, 2007, followed by a Statement of Claim of 9th July, 2007, the Appellant as Plaintiff claimed against the Respondent as follows:-
"15
a) An order of the Honourable Court, for the Defendant to cease the contamination of the Plaintiff's water well and restitute it back to it's original nature, or in the alternative, to provide constant clean drinking water for the Plaintiff within his premises of Amanvuru Amonye, Ishiagu, Ivo, Ebonyi State.
b) A perpetual injunction restraining the defendant from operating its Base Station at Amanvuru Amonye, Ishiagu, Ivo, Ebonyi State until an environmental impact assessment is conducted on that Base Station and it's environ.
c) N15 Million Naira being general damages for loss of use of the Plaintiff's water well since August 2006.''

The Respondent denied that it caused in anyway the contamination of the Appellant's water well as it maintains the highest international safety standard in running all its Base Station inclusive of the one the subject matter of dispute. The Appellant water well was not contaminated by diesel that escapes from its Base Station. If for any reason the Appellant water well was contaminated or that the Appellant water well is bad, it could have been caused by the nature of the soil around the area as the site/place where its Base Station is erected was a former dump site and that chances are that the accumulated toxic on that dump site which is close to the Appellant's compound and the water well could have as well contaminated the said water well.

At the close of proceedings, the Court on the application of parties visited the locus and incorporated its report/observations in the locus in its Judgment.

The Court dismissed the Appellant's case hence this appeal.


ISSUES:
???Learned Counsel for the Appellant nominated two Issues for determination. They are:-

1. Is there evidence to prove the contamination of the Appellant's Water Well by the diesel seeping out of the Respondent's Base Station? (Grounds One and Three).
2. Is Exhibit "D" A Hearsay Document and Did it prove the said contamination? (Ground Two).



DECISION/HELD:
The appeal was dismissed for lack of merit.


Read Full Judgment