BAUCHI STATE ENVIRONMENTAL PROTECTION AGENCY (BASEPA) & ANOR v. MALAM SANI ISA & ORS
(2016)LCN/8237(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/J/238/2014
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER THE FORMULATED ISSUES FOR DTERMINATED MUST ARISE FROM THE RATIO OF THE JUDGEMENT OF THE TRIAL JUDGE
Formulated issues for determination must arise from the ratio of the judgment of the Court below. See Atanda & Ors. v. Akanji & Ors. (1989) 2 NSCC 511 at 526; Idahosa v. Oronsaye (1959) 4 FSC 166 and Akinlagun v. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80. per. JOSEPH TINE TUR, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; THE IMPLICATION OF STRIKING OUT THE LONE ISSUE SUBMITTED FOR DETERMINATION
The effect is that issue one covers grounds one and two which is supported by a plethora of authorities. A lone issue may encompass many grounds of appeal. See Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. Where as in this case the lone issue is put forward as arising from two grounds in the Notice of Appeal is struck out as not arising from the judgment of the Lower Court, it follows that the two grounds have also been struck out. Therefore, having struck out the lone issue submitted for determination, this appeal has no pedestal to stand upon. Order 18 Rule 3(1)-(4) of the Court of Appeal Rules, 2011 provides as follows:
“3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or Exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.” per. JOSEPH TINE TUR, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
BAUCHI STATE ENVIRONMENTAL PROTECTION AGENCY (BASEPA)
ATTORNEY-GENERAL, BAUCHI STATE Appellant(s)
AND
MALAM SANI ISA
MALAM ABDULLAHI HASSAN
MALAM MAIKASUWA
ABUBAKAR SANI
ADAMU SHEHU
ALHAJI ABDULLAHI
MALAM YUSUF NADABO
MALAM ABDULLAHI
MALAM SHAN?UN
MALAM SANI HARUNA
MAMUNU AHMADU
MALAM MUSTAPHA BALA
MUSA HASSAN Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Bauchi State Environmental Protection Agency (BASEPA) (1st appellant) and the Attorney-General of Bauchi State (the 2nd appellant) were sued by the respondents in the High Court of Bauchi State holden at Bauchi on 30th August, 2013. The action came to Court by way of Originating Summons supported by affidavit, documentary Exhibits, and the written address of Counsel. The appellants entered appearance and filed a counter affidavit supported by a written address of Counsel. The respondents proffered the following questions for determination by the Court below to wit
“1. Whether the issuance of notice to abate nuisance on the plaintiffs by the sanitary inspector is valid without following due process of law with regard to the provisions of Section 14(1)(b) Cap 47 of the Laws of Bauchi State of Nigeria, Volume 1 of 1991 ?
2. Whether in view of Section 32(i) to (c) of the Laws of Bauchi State of Nigeria Cap 47, Volume 1 of 1991 the 1st defendant can issue an abatement of nuisance notice without giving particulars of such nuisance and without stating the period within
which such nuisance shall be abated?
3. Whether the occupation of the plaintiffs shops constitute nuisance having regards to the definition of nuisance at page 1065 of the Black’s Law Dictionary, 6th Edition?
4. Whether in view of Section 43 and 36(1), (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended the 1st defendant can unilaterally scuttle the plaintiffs right to acquire and own immovable property in emirs drive Kusurwan Pada, Bauchi which is within the territory of Nigeria and without giving them an opportunity to defend themselves of any alleged offence.”
They claimed the following reliefs if the Lower Court were to determine the questions in their favour.
“1. A declaration that the purported notices served on the plaintiffs on the 26th July, 2013 in breach of Section 14(1)(b) Cap 47 of the Laws of the Bauchi State of Nigeria, Vol.1 of 1991 was illegal, null and void and has no legal effect whatsoever.
2. An Order directing the plaintiffs to re-open their shops as their occupation does not constitute any nuisance or in breach of any written law.
3. A declaration that the order by
the 1st defendant against the plaintiffs is a violation of their right to acquire and own immovable property in emirs drive Kusurwan Pada, Bauchi which is within the territory of Nigeria and such action was illegal, null and void as same was also made in breach of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Laws of Bauchi State of Nigeria Cap 47, Vol.1 of 1991.
4. AN ORDER for payment of N5,000,000.00 (Five Million Naira) only as general damages against the defendants jointly and severally for illegal closure of the plaintiffs shops which caused them huge lost of business and embarrassment as a result of the action of the 1st defendant thereof.
5. Cost of action.”
The three questions to be interpreted by the Lower Court pertains to the true meaning of Section 14(1)(b) and Section 32(i)-(c) Cap 47, Laws of Bauchi State of Nigeria, Vol.1 of 1991 and Secondly, Section 36(1)-(2) and 43 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. These are the provisions of the law and Constitution that the respondents submitted to the Court below for interpretation to see whether their
Constitutional rights to own or hold property within 100 metres of the Federal Prisons, Bauchi in Bauchi State can be abated by the mighty powers of the Bauchi State Government.
It may be garnered from the affidavits filed by the parties that many shops are being operated by some traders within 100 meters of the Federal Prisons in Bauchi, Bauchi State. These shops have been there for over thirty decades. Sometimes in September, 2010 there was a jail break in the prisons. Thereafter, the prison authorities were of the opinion that the continuous existence of the shops within the vicinity was prejudicial to the interest of the prisons, the authorities, and the public hence the prisons Comptroller wrote to the Secretary to the Bauchi State Government who directed that the affected shops situate within 100 metres from the Prison be closed. The respondents’ shops were affected hence a Sanitary Inspector effected the directive by serving the respondents abatement notices. The respondents instituted the originating summons to challenge the issuance of the abatement notices as can be seen in the questions submitted for determination and the remedies claimed
in the Court below. After considering the affidavits, the documentary Exhibits together with the written addresses of learned Counsel, the learned trial Judge held on 22nd May, 2014 at pages 54-57 of the printed record as follows:
“?The 1st question, I am asked to determine on the originating summons is: “?Whether the issuance of notice to abate nuisance on the plaintiffs by the Sanitary Inspector is valid without following due process of law with regard to the previous of Section 14(1)(b) Cap 47 of Laws of Bauchi State, Vol.1 of 1991.
The issue of who served the abatement notice served on the plaintiffs is not resolved by the affidavit of both parties before me. Whereas plaintiffs deposed in Paragraph 3(0) of their affidavit that the 1st defendant though the Sanity Inspector served them with an abatement notices on the 26th July, 2013, defendants denied and deposed in Paragraph 3(i) that the plaintiffs were served through a staff of the 1st defendant and not a sanitation inspector.
I have seen the notice to abate insane that “?M”? dated 26th June, 2013 and was issued by a Sanity Inspector. Exhibit “M”? was
purportedly issue “?present to Section 10 of the Agency Edict No.10 of 1997”? issue Bauchi State Environmental Protection Agency Edict No.10 of 1997. The Edict No.3 of 1997 as Edict No.10 of 1994 has been repealed by Section 64 of Edict No.3 of 1997. Section 10 spelt out additional powers given to BASEPA in the discharge of its function under Section 9 of the Law. Exhibit “?M”? the Notice of abatement served on the applicants ordered than to abate the nuisance within the business place immediately. The notice Exhibit “M”? did specified what was the nuisance in the business of the 1st applicant as “operating a photo studio.”
I have read through the entire Sections 9 and 10 of the Edict and other Sections and I have failed to see where merely operating a photo studio constitutes a nuisance. The respondents rely on the facts deposed to in Paragraphs 3(a)-(i) as the reasons for closing down the applicants shops. If there were the reason, they were not stated in the notice of abatement on the fact constituting nuisance. It is clear from the wordings of the provisions of the Bauchi State Environmental Protection
and Conservation Agency Edict No.3, 1997 that there is nothing in the intention of the legislature to make Security matter as coming within the meaning and definition of nuisance to warrant locking the shops of the applicants.
I am therefore of the view that the occupation of the applicants shops has not been shown to constitute nuisance. The compulsory occupation of the shops within compensation is also an infringement of the applicants Constitutional right to acquire and own immovable properties any where in Nigeria.
I therefore hold that the applicants have made out a case for me to consider the questions sought. I therefore answer questions 1, 2, 3 and 4 for determination in the negative.
As for the reliefs sought, I hold that the applicants have proved their entitlement to the reliefs. In determining the amount of damages to be awarded, I have taken into consideration the length of period the applicants’ shops had been closed and sealed and the depositions that some of the goods inside are perishables. To close a trader shops for a period of more than 8 months i.e. from 26th July, 2013 to date is an enormous damage. However, since
there is no material before me as to the particulars of damages. I will only award an amount which is my opinion can restore them to the position they were before the claims. I therefore make the following orders:
(1) I declare that the purported notices served on the plaintiffs on 26th July, 2013 by the defendants is breach of Section 14(1)(b) Cap 47 of the Laws of Bauchi State, Vol.1 of 1999 is illegal, null and void and has no legal effect whatsoever.
(2) I hereby direct the plaintiffs to re-open their shops as their occupation was not unlawful.
(3) I declare that the order of the 1st defendant for the closure of the plaintiffs’? shops on 26th July, 2013 is illegal and is breach of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(4) I award the sum of N3,000,000.00 as General damages in favour of the plaintiffs.”
The appellants have formulated the following lone issue for determination:
“Whether the trial Judge erred in law in relying on the repealed law i.e. Section 14(1)(b) Cap 47, Laws of Bauchi State, Volume 1 of 1991 and enter judgment in favour of the respondents.”
The respondents distilled the following issue for determination:
“Whether the trial Judge was right in law in relying on the said Section 14(1)(b) Cap 47, Vol.1 of 1999, Laws of Bauchi State alongside the provision of Section 9 and 10 Edict No.3 of 1997 as well as Section 43 and 36(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria and enter judgment in favour of the respondents?”?
The question for determination in this appeal is whether Section 14(1)(b) Cap 47, Vol.1 of 1991, Laws of Bauchi State had been repealed. If the answer is yes, was the learned trial Judge right to have utilized or applied the provisions of a repealed law to determine the civil rights and obligations of the parties? And if the law had been repealed could the learned trial Judge have resorted to the provisions of Section 9 and 10 of Edict No.3 of 1997, Laws of Bauchi State to determine the issues in dispute in favour of the respondent?
The learned trial Judge held at page 55 lines 9 to page 57 lines 1-6 of the printed record as follows:
“?I have seen the notice to abate insane that “M”? dated 26th June, 2013 and was issued
by a Sanity Inspector. Exhibit “M” was purportedly issue present to Section 10 of the Agency Edict No.10 of 1997 issue Bauchi State Environmental Protection Agency Edict No.10 of 1997. The Edict No.3 of 1997 as Edict No.10 of 1994 has been repealed by Section 64 of Edict No.3 of 1997. Section 10 spelt out additional powers given to BASEPA in the discharge of its function under Section 9 of the Law. Exhibit “M” the Notice of abatement served on the applicants ordered than to abate the nuisance within the business place immediately. The notice Exhibit “M” did specified what was the nuisance in the business of the 1st applicant as “operating a photo studio.”
I have read through the entire Sections 9 and 10 of the Edict and other Sections and I have failed to see where merely operating a photo studio constitutes a nuisance. The respondents rely on the facts deposed to in Paragraphs 3(a)-(i) as the reasons for closing down the applicants shops. If there were the reason, they were not stated in the notice of abatement on the fact constituting nuisance. It is clear from the wordings of the
provisions of the Bauchi State Environmental Protection and Conservation Agency Edict No.3, 1997 that there is nothing in the intention of the legislature to make Security matter as coming within the meaning and definition of nuisance to warrant locking the shops of the applicants.
I am therefore of the view that the occupation of the applicants shops has not been shown to constitute nuisance. The compulsory occupation of the shops within compensation is also an infringement of the applicants constitutional right to acquire and own immovable properties any where in Nigeria.
I therefore hold that the applicants have made out a case for me to consider the questions sought. I therefore answer questions 1, 2, 3 and 4 for determination in the negative.
As for the reliefs sought, I hold that the applicants have proved their entitlement to the reliefs. In determining the amount of damages to be awarded, I have taken into consideration the length of period the applicants’? shops had been closed and sealed and the depositions that some of the goods inside are perishables. To close a trader shops for a period of more than 8 months i.e. from 26th
July, 2013 to date is an enormous damage. However, since there is no material before me as to the particulars of damages. I will only award an amount which is my opinion can restore them to the position they were before the claims. I therefore make the following orders:
(1) I declare that the purported notices served on the plaintiffs on 26th July, 2013 by the defendants is breach of Section 14(1)(b) Cap 47 of the Laws of Bauchi State, Vol.1 of 1999 is illegal, null and void and has no legal effect whatsoever.
(2) I hereby direct the plaintiffs to re-open their shops as their occupation was not unlawful.
(3) I declare that the order of the 1st defendant for the closure of the plaintiffs’ shops on 26th July, 2013 is illegal and is breach of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(4) I award the sum of N3,000,000.00 as General damages in favour of the plaintiffs.”
What has emerged from the judgment of the learned trial Judge is that the Sanitary Inspector issued the Abatement Notice pursuant to Section 10 of Edict No.10 of 1994 which governs the operations of the Bauchi State Environmental
Protection Agency Edict of 1997 now Edict No.3 of 1997. Edict No.10 of 1994 was repealed by Section 64 of Edict No.3 of 1997. Section 10 of Edict No.3 of 1997 spelt out the additional powers of the 1st appellant. Exhibit “M” served on the respondents by the Sanitary Inspector to abate their respective nuisances within 100 metres to the Federal Prisons, Bauchi in Bauchi State. It can be seen that the learned trial Judge did not determine the efficacy or validity of the provisions of Section 32(1)-(c) and 145(1) Cap 47, Laws of Bauchi State of Nigeria, Vol.1 of 1991 which were the questions the respondents submitted for determination. Therefore issue one distilled by the appellants in this Court for determination did not arise from the judgment of the Lower Court. Formulated issues for determination must arise from the ratio of the judgment of the Court below. See Atanda & Ors. v. Akanji & Ors. (1989) 2 NSCC 511 at 526; Idahosa v. Oronsaye (1959) 4 FSC 166 and Akinlagun v. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80. Accordingly, issue one is struck out.
The appellant submitted only one issue for determination by this Court. But two
grounds accompany the Notice of Appeal filed by the appellants on 2nd June, 2014 which are couched as follows:
?GROUND ONE:
The decision is against the weight of evidence.
GROUND TWO:
The learned trial Judge erred in law and misdirect himself when he held that the notices served on the plaintiffs/respondents on the 26th July, 2013 by the defendants is a breach of Section 14(1)(b) Cap 47 of the Laws of Bauchi State, Vol.1 of 1999 is illegal, a Law which does not exist and this has occasioned miscarriage of justice.
PARTICULARS OF ERROR/MISDIRECTION
(a) Section 14(1)(b) Cap 47 of the Laws of Bauchi State, Vol.1 of 1999 does not exist. Same citation can be found in the Laws of Bauchi State, 1991 which was repealed with the coming into force of the Bauchi State Environmental Protection and Conservative Agency Edict, 1997. A repealed law has no life to influence argument.
(b) Where a pronouncement of a Court is based upon a repealed law it raises the issue of jurisdiction which can be taken up at any stage.
RELIEF SOUGHT:
AN ORDER setting aside the judgment of the Lower Court and in its place, an Order dismissing
the claim of the plaintiffs/respondents.”
The effect is that issue one covers grounds one and two which is supported by a plethora of authorities. A lone issue may encompass many grounds of appeal. See Kalu v. Odili (1992) 6 SCNJ (Pt.1) 76 at 93. Where as in this case the lone issue is put forward as arising from two grounds in the Notice of Appeal is struck out as not arising from the judgment of the Lower Court, it follows that the two grounds have also been struck out. Therefore, having struck out the lone issue submitted for determination, this appeal has no pedestal to stand upon.
?Order 18 Rule 3(1)-(4) of the Court of Appeal Rules, 2011 provides as follows:
“3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which
the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or Exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.”
This appeal stands dismissed. Parties to bear their respective costs. The judgment of the Lower Court is affirmed.
ADZIRA GANA MSHELIA, J.C.A.: I agree with my learned brother, Tur, JCA whose reasons for judgment I have had a privilege of a preview that the appeal is devoid of merit. It is elementary to emphasize that appeals are argued on briefs which argument are based on issues distilled from grounds of appeal. See Order 18 Rule 3(1)-(4) of the Court of Appeal Rules, 2011 and Sekoni v. U.T.C. (Nig.) Plc (2006)
8 NWLR (Pt.982) 283. The absence of issues renders the brief incompetent and same struck out. In absence of a competent brief the appeal is liable to be dismissed for want of prosecution.
For this reason and the fuller reasons contained in the lead judgment, I too dismiss the appeal and affirm the decision of the learned trial Judge.
ADAMU JAURO, J.C.A.: Having had the opportunity to read before now the judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA. I am in entire agreement with the reasoning and conclusions reached therein. I find no merit in this appeal and hereby dismiss same. I adopt the said judgment as mine, in affirming the judgment of the Lower Court.
I abide by consequential orders made in the lead judgment.
Appearances
Haruna Ibrahim SCI – MOJ – Bauchi State with, Maryam Lawal (NYSC)For Appellant
AND
Ahmadu Musa, Esq.For Respondent
