MULIMA & ORS v. BAGOMS CO. LTD (2022)

MULIMA & ORS v. BAGOMS CO. LTD

(2022)LCN/17159(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/G/420/2017

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. ALHAJI MODU B. MULIMA 2. ALHAJI GARBA B. MULIMA 3. ALHAJI MUSTAPHA B. MULIMA 4. ALHAJI BABAGANA B. MULIMA 5. TIJANI B. MULIMA 6. ALHAJI MUSTAPHA M. B. MULIMA 7. ALHAJI MALA ALI 8. SAINA LIMAN 9. ALHAJI ALI (KURMA) 10. MALLAM BUKAR DRIVER 11. INDIMI BABAGANA 12. MAIDUGU MOHAMMED BUKAR 13. MALLAM USMAN 14. BASA KURA MOHAMMED 15. BABAGANA MALA 16. MARWANA TIJJANI APPELANT(S)

And

BAGOMS COMPANY LTD RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE ESSENTIAL AIM OF THE LAW OF TORT

The essential aim of law of tort is to compensate persons harmed by the wrongful conduct of others. In essence, the law of tort requires every person not to cause harm to others, and if harm is caused, the victim is entitled to sue for damages. Monetary damages are the normal remedy for tort. See Clement Aviomoh vs C.O.P. & Anor (2021) LPELR-55203.

THE CARDINAL PRINCIPLE ON TORTUOUS LIABILITY

Let us take our seat in the undergraduate class of tort. In addition to what I had said earlier let me look at a few cases. The apex Court has stated in a number of cases the cardinal principle of tortuous liability. The Supreme Court in Orhue Vs NEPA (1998) LPELR-2758 (SC) has held that the cardinal principle of liability in tort is that the party complaining is owed a duty of care by the other who has breached this duty by his conduct which has made him to suffer such damages. The person complaining must prove the damages he has suffered from the conduct of the other party who has breached the duty of care. See AVIOMOH V C.O.P & ANOR (2021) LPELR-55203 (SC). For the Respondent in this appeal to be liable in tort, the Respondent must owe the Appellant a duty of care which they have breached and has caused some injury or damages to the Appellants. It would appear from the cases above that a person cannot be liable for a tort when the Appellants cannot prove any damage nor injury suffered arising from the act of the Respondent. It would appear as the lower Court has held that a person who is complaining of a breach of duty cannot be rewarded for anticipatory speculative or imagined wrong. PER TOBI, J.C.A.

THE POSITION OF LAW ON THE PRINCIPLE IN THE LAW OF NUISANCE

The legal principle applied are also the same. In the Faila’s case and this case, the aspect of the law of tort involved is nuisance. The principle in the law of nuisance is that a person who has a legal right to a property must use his property in such a way that it is not detrimental to the right of another person. The implication of this is that no one has the absolute right to enjoy his property without acknowledging the right of another person. See Eholor vs Idahosa (1992) 2 NWLR (pt 223) 323. The area of the Law of Tort applicable in this area is Nuisance. This is the area of tort applicable here than any other field of tort. An action in nuisance is an action which emphasizes on protecting the right of a person or group of persons over the use of land. This bothers much more on the protection of the environment against pollution by reason of oil, toxic fumes which interferes with the peacable enjoyment of the land by another. An action in nuisance is to ensure control of injurious activities against individuals or a community. See Fafunwa vs Bellview Travels Ltd (2013) LPLWR-20800 (CA); Ejowhom vs Edok-Eter Mandias Ltd (1986) LPELR-1071 (SC). A party must not use his property in a way that inflict injury to his neighbours. Indeed no one is permitted to use his property in a way that interferes with the easement or profit or any other right accruing to a person. See Abraham Ipadeola & Anor vs Abiodun Oshowole (1987) 5 SC 376. PER TOBI, J.C.A.

THE POSITION OF LAW ON THE TWO TYPES OF NUISANCE

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division in Suit No. BOHC/MG/CV/17/16 delivered on 27th March, 2017 by Hon. Justice Haruna Y. Mshelia, of the Borno State High Court. The Appellants sued the Respondent in a representative capacity on behalf of the residents of Shehuri North Maiduguri at the lower Court, for illegally constructing a filling station in a residential area. The Appellants called four witnesses to prove their claim and the defendant called one witness in defence of the action.

Pleadings were filed and exchanged by parties and after the curtain was drawn at the end of the trial, the lower Court in its judgment found on pages 82-90 but specifically on pages 89-90 of the record held in favour of the Defendant thus:
“From the evidence adduced in this case by the Claimants, it appears the complaint of the claimants is fear of fire outbreak or danger of inhaling smell of petroleum. In other words, the claimants are suing to prevent foreseeable damages they are likely to face by the operation of a filling station not that they have suffered any damages so far. Can such claim succeed under tortious liability? I do not think so. We have seen before that tort as a branch of law deals with damages suffered by a person as a result of wrongful conduct of another person. It does not deal with speculative injury. Moreso, claimants witness number one admitted under cross-examination that there is another filling station called AUN filling station, located in that area. The claimants did not establish any damages suffered as a result of the location of the filling station in that area.
In any event, the defendant had tendered Exhibit B which is a grant indicating that the purpose of the land on which the filling station was built is filling station and not residential. The Defendant also tendered Exhibit G, a fire safety certificate issued by Borno State Government Fire Service certifying the fire safety arrangement at the filling station as satisfactory. All these go to show that complaint of fear by the claimants are unfounded. The Claimants’ have not establish (sic) any right entitling them to the relief sought.
Accordingly, the Claimants have not proven their claim before this Court. The case has failed and same is dismissed. The cost of N500,000 is awarded the Defendant against the Claimants jointly and severally.”

The Appellants being dissatisfied with the above decision of the lower Court, filed an appeal of 2 grounds in the Notice of Appeal found at pages 91-93 of the record. The Appellants’ Counsel in this appeal is A. A. Sangei Esq., who settled the Appellants’ brief filed on 28/10/2021. The Respondent’s counsel who settled the Respondent’s brief filed on 22/11/2021 is S. M. Konto Esq. The Appellants’ counsel in their brief formulated a sole issue for determination viz:
Whether or not the lower Court was in view of the entire facts pleaded and evidence adduced was wrong when it dismissed the Appellants’ claim.

On this sole issue, the Appellants’ counsel submitted that the lower Court was in error when it dismissed the Appellants’ claim as they proved their claim on the balance of probability required by law. They proved that the area where the filling station in issue was built is amidst residential area and it is a threat to lives and properties of the Appellants. He referred to the case of Faila vs. Usman & Ors (2020) 7 NWLR (Pt.1724) 570 at 579 Paras D-G which he submitted is on all fours with the case at hand and also Adekunle vs. Adelugba & Ors (2011) 16 NWLR (Pt.1272) 154 at 171 paras C-G; (2013) All FWLR (Pt.675)333.

The Appellants finally urges this honourable Court to allow the appeal and set aside the decision of the lower Court.

On receipt of the Appellants’ brief, the Respondent filed his brief of argument adopting the issue formulated by the Appellant. It is the submission of counsel that the Appellants could not establish their claim at the lower Court and therefore was right in dismissing the case. None of the four witnesses of the Appellants could show that they have suffered any injury or damages for the alleged nuisance, counsel submitted referring to the case of Adediran Vs. Interland Transport Ltd. (1991) ALL NLR P.98 at P.118. Relying on the same case, counsel further submitted that it was detrimental to the case of the Appellants to have sued the Respondent for nuisance in a representative capacity for and on behalf of residents of Shehuri North. The Respondent’s ability to prove that it got all the necessary approvals from the regulatory authorities to build the Petrol Filling Station in the land and further the admission that there is a Petrol filling Station around the location of the Respondent’s filling station fortifies the case of the Respondent against the Appellants counsel submitted.

The Respondents finally submitted that the case of Faila vs. Usman (supra) which the Appellants counsel cited in his brief is distinguishable from the present case. In Faila’s case the Appellant constructed on a drainage waterway in defiance to public authority and the alleged nuisance was proved by the Respondents and further the case was not brought in a representative capacity.

The Respondent therefore urges this Court to dismiss this appeal and uphold the decision of the lower Court.

The facts of the case cumulating to this appeal is not complicated at all. The case is based on nuisance and not on ownership of land. The Appellants are residents of Shehuri North besides Abbaganaram Primary school opposite State Low Cost Housing Estate, Maiduguri.

The Respondent has constructed a petrol filing station at that location. The Appellants who sued on behalf of other residents are afraid of the danger that will occasion to their health and those of their family. The Appellants complain is that the area being a residential area is not fit for the operation of a petrol filling station with all the attendant consequences and danger to the health of the Appellants and those they represent and those of their families. The Respondent do not deny constructing the filling station in the location. The Respondent’s strong point is that those who should know better than the parties as to the health hazard and danger of a Petrol Filling Station in that location has given her the approval and therefore the implication is that the fear is non-existing. The lower Court agrees with the case of the Respondent in its judgment principally on the ground that actions in tort are not founded on anticipatory wrong or injury but rather on actual injury suffered by the wrong. This makes the issues involved in this appeal narrow.

As established earlier, the Appellants case in the lower Court is based on the law of Tort and specifically on the subject of nuisance. It will not be out of place to take a little excursion into the law on the area of law affected in the case before this Court in this appeal.

The essential aim of law of tort is to compensate persons harmed by the wrongful conduct of others. In essence, the law of tort requires every person not to cause harm to others, and if harm is caused, the victim is entitled to sue for damages. Monetary damages are the normal remedy for tort. See Clement Aviomoh vs C.O.P. & Anor (2021) LPELR-55203.

The apex Court has held that for a person to be entitled to compensation and damages in tort, the wrong must be accompanied by loss or damages and where name of such can be proved, a person cannot be entitled to compensation or damages. See International Messengers Nig Ltd vs Engineer David Nwachukwu (2004) LPELR-1526; Thomas Chukwuma Makwe vs Chief Nwukor & Anor (2001) 7 SC (pt 1) 356.

The issue involved here is the tort of nuisance. The law on the tort of nuisance is to prevent a person from unreasonable use of his land in such a way that it is detrimental to others. I will be looking at this in greater detail when I will be addressing the issue for determination in this case. The point must be made that from the evidence adduced in this case by the Appellants, it appears their complaint is based on the fear of fire outbreak and the hazard of operating a Petrol Filling Station within a residential area. There is no evidence of what the Appellants have suffered by the construction of the filling station but rather what is likely to be suffered by them. In other words, the Claimants are suing to prevent foreseeable damages they are likely to face by the operation of the filling station not that they have suffered any damage so far. The big question is, whether this is enough ground for the lower Court to grant the reliefs of the Appellants before it. The lower Court held that it is not enough but the Appellants believe it should be enough.

The reasoning of the lower Court clearly shows that since the Appellants were unable to show actual damages suffered the action failed. The duty of this Court on appeal is to look at the evidence adduce before the lower Court and the law in determining whether the lower Court was right in its decision. It is not my duty to replace my finding with that of the lower Court especially when the findings are in line with the evidence before the Court. See Ezeafulukwe vs John Holt Ltd (1996) 2 NWLR (pt 432) 511.

The only situation I can interfere with the finding of the lower Court is when the finding is perverse that is to say when the finding is at variance with the evidence before the Court. See Okoye & Anor vs Obiaso & Ors (2010) 8 NWLR (pt 1195) 145, Oguanuhu & Ors vs Chiegboka (2013) LPELR-19980(SC).

I have looked at the pleadings and the evidence of the witnesses before the lower Court. I cannot fault the finding of the lower Court that the case of the Appellants is not based on actual wrong or injury done but rather on the anticipated fear of the damage the operation of the filling station will cause to the residents of where the Respondent’s petrol station is located. It is one thing to get the facts right and yet another to apply the right position of the law to the facts. Where a Court applies the wrong law or the wrong position of the law to the correct facts, an appellate Court can overturn the decision of the lower Court. The implication of all this is that, the lower Court must be right on the facts and the law for its decision to be affirmed.

I have mentioned above that the lower Court was right on the finding of the fact. It is now time to look at whether the lower Court was right in applying the law to the correct finding of facts. This is the appropriate place to formulate the issues for determination or adopt the issues formulated by the parties. It is safer to adopt the issues formulated by the parties since in my opinion the sole issue formulated by the Appellants adequately covered the grounds of appeal. I feel safer to adopt the Appellants’ sole issue since the Respondent adopted the same issue. For clarity, the issue for determination in this appeal is:
Whether or not the lower Court was, in view of the entire facts pleaded and evidence adduced was(sic) wrong when it dismissed the Appellants’ claim.

I had mentioned above that from the judgment of the lower Court, the main reason the Appellants’ claim was dismissed was because the Appellants could not prove actual injury but rather their case was built on anticipatory or speculative injury. It is the finding of the lower Court that actions in tort do not cover such claims, is his Lordship correct? This obviously will take me into an excursion into the principles of the law of tort. Without sounding academic but to properly decide this appeal, this is a forbidden fruit that I will have to bite as there is no way I can decide this without doing that.

Let us take our seat in the undergraduate class of tort. In addition to what I had said earlier let me look at a few cases. The apex Court has stated in a number of cases the cardinal principle of tortuous liability. The Supreme Court in Orhue Vs NEPA (1998) LPELR-2758 (SC) has held that the cardinal principle of liability in tort is that the party complaining is owed a duty of care by the other who has breached this duty by his conduct which has made him to suffer such damages. The person complaining must prove the damages he has suffered from the conduct of the other party who has breached the duty of care. See AVIOMOH V C.O.P & ANOR (2021) LPELR-55203 (SC). For the Respondent in this appeal to be liable in tort, the Respondent must owe the Appellant a duty of care which they have breached and has caused some injury or damages to the Appellants. It would appear from the cases above that a person cannot be liable for a tort when the Appellants cannot prove any damage nor injury suffered arising from the act of the Respondent. It would appear as the lower Court has held that a person who is complaining of a breach of duty cannot be rewarded for anticipatory speculative or imagined wrong.

The Appellants’ Counsel had referred to the decision of this Court Faila vs Usman (supra) where this Court affirmed the decision of the lower Court declaring the action of the Appellants in that case in constructing a structure around the waterway unlawful. This case affirmed the anticipatory action of the Appellant in that case unlawful. To that extent, the case seems to be good law for this case. The Respondent tried to distinguish the facts of that case with the facts of the case here on appeal. I do not know whether the Respondent’s Counsel succeeded in doing so. It is true that the construction involved in that case has to do with waterway while here it is a Petrol Filling Station but the principle of the law involved which is the law of nuisance is not different. When a Court says a case is on all fours with another case, it does not mean that all the facts must be the same in all respect. It may be difficult to find such case. A case is on all fours with another case when the material facts and the issues involved are the same.

The legal principle applied are also the same. In the Faila’s case and this case, the aspect of the law of tort involved is nuisance. The principle in the law of nuisance is that a person who has a legal right to a property must use his property in such a way that it is not detrimental to the right of another person. The implication of this is that no one has the absolute right to enjoy his property without acknowledging the right of another person. See Eholor vs Idahosa (1992) 2 NWLR (pt 223) 323. The area of the Law of Tort applicable in this area is Nuisance. This is the area of tort applicable here than any other field of tort. An action in nuisance is an action which emphasizes on protecting the right of a person or group of persons over the use of land. This bothers much more on the protection of the environment against pollution by reason of oil, toxic fumes which interferes with the peacable enjoyment of the land by another. An action in nuisance is to ensure control of injurious activities against individuals or a community. See Fafunwa vs Bellview Travels Ltd (2013) LPLWR-20800 (CA); Ejowhom vs Edok-Eter Mandias Ltd (1986) LPELR-1071 (SC). A party must not use his property in a way that inflict injury to his neighbours. Indeed no one is permitted to use his property in a way that interferes with the easement or profit or any other right accruing to a person. See Abraham Ipadeola & Anor vs Abiodun Oshowole (1987) 5 SC 376.

In J.A. Adediran & Anor vs Interland Transport Limited (1991) 11-12 SC 203, the apex Court in defining and bringing out the two main different types of nuisance held thus, per Belgore, JSC (as he then was):
“Nuisance is an act of commission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance, whereas the private nuisance is within the competence of the victim to prosecute civilly, the public nuisance is a criminal matter for prosecution by the Attorney-General.”

There are two types of nuisance, private and public nuisance. One of the important reasons for the distinction is to determine who can institute an action. For private nuisance, the wrong is made to an individual and therefore it is that individual who could sue but in public nuisance, the inconvenience or wrong is suffered by the public. See Regt T. T. I.B.C.C. vs Olubobokun (2017) 1 NWLR (pt 1545) 1. In such a situation, the affected parties can sue together and indeed represent others without the need of each person proving what he has suffered. One point made in the above case is that the existence of the nuisance per se does not provide a remedy as the person wronged needs to prove the substantial injury suffered.

The Appellant will only be entitled to injunction if the act of nuisance is a continuance act. See Elohor vs Idahosa (1992) 2 NWLR (pt 223) 323. The question before this Court in deciding this issue is, whether the facts of this case warrant the lower Court dismissing the case of the Appellants. The lower Court is firm in its decision that the failure of the Appellant to show the actual injury suffered is damaging to their case. It is not in doubt that from the pleadings and the evidence before this Court, there is no evidence that the Appellants have actually suffered any wrong. All they are after is to avoid future wrong or anticipated damage. The question is from the pleadings and the evidence before the lower Court, was the Appellant able to prove that they have suffered anything from the construction of the filling station. I agree with the lower Court to the effect that for a person to succeed in an action for nuisance, the individual must establish that he has sustained some damage arising from the duty of care owed him by the other person. See Ngilari vs Mothercat Ltd (1999) 13 NWLR (pt 636) 626.

The main point here is whether in a case of nuisance, the Appellants need to prove actual injury suffered before they can succeed. Is it not enough for the Appellants to prove that the nuisance is such that if not stopped, it will cause injury in the future. The line of cases in the apex Court seem to be that it is not enough to show that there was an act of nuisance but the party claiming must go ahead to show the reasonable discomfort and inconvenience suffered as a result of the nuisance. This is a major aspect of the prove of nuisance before a Court to succeed. It can be argued that since the purpose of nuisance is to ensure that a person does not use his property in a way detrimental to another, the person need not wait for actual injury before he sues.

It is clear from the evidence before the lower Court that the Appellants’ case is based on anticipatory and speculative injury or damages in the future arising from such act of nuisance. The Appellants to succeed in the lower Court needed to show that the premises where the Filling Station is located is a residential area and secondly, that the operation of the filling is hazardous to their health. The Appellant needed to call evidence from experts to establish the fact of the danger of the construction of a filling station in that location. This becomes even more important when the Respondent has given evidence and tendered documents to the effect that he got approval for the construction of the Filling station at that location and from all the regulatory bodies as shown in the exhibits before the Court. No Court will grant a relief based on speculative and anticipatory damage in a case of tort or nuisance without evidence establishing the wrong injury or damage. Once the action of the Respondent did not inflict physical injury to the property of the Appellants and since the ordinary use of the Appellants’ property is not interfered with or impaired, the action in nuisance cannot stand. See UTB Ltd vs Ozoemena (2000) LPELR-10106.

Looking at the relief in the lower Court of the Appellants, I agree with the lower Court that the Appellants were unable to prove their case on the balance of probability. The Appellants were unable to clearly show by superior evidence that the place is designated as a residential area. The Appellants have also failed to prove by credible evidence that the construction of the Filling Station has occasioned inconvenience that they have suffered from. In the light of the approval given to the Respondent by the regulatory authorities and further still with the unchallenged evidence of another filling station near the Respondent’s filling station, I have no difficulty in holding that the lower Court was in sound footing in its judgment.

The sole issue is resolved in favour of the Respondent as the claim of the Appellants is premature in the realm of the law of tort specifically on nuisance since they were unable to show the actual injury they had suffered. Even if anticipatory damages can be awarded, a Court is not allowed in law to take judicial notice of the danger. The Appellants have the duty to show in law by the pleadings and credible evidence with witnesses showing that the existence of a petrol station in that place is dangerous to the life of the people. This is particularly important since the Respondent has pleaded and shown by evidence oral and documentary that all regulatory bodies involved in giving approval to the setting up of a petrol station (Exhibit B-G) the burden then rest on the Appellants to prove by more credible evidence that the petrol station will bring danger to the community. This evidence is lacking and in that instance the decision of the lower Court cannot be faulted.

Before I give the obvious final decision on this case, the point must be made that an appellate Court can only deal with the issues brought before it and is not at liberty to go outside the issues placed before it to deal with other matters. This is a restriction for me on the matter as going into issues not presented before the Court will amount to my raising issues suo moto and resolving same without calling on the parties to address the Court. See Dalek Nigeria Ltd vs Oil Mineral Producing Areas Development Commission (OMPADEC) (2007) 7 NWLR (pt 1033) 402; Mojekwu vs Iwuchukwu (2004) 4 SC (pt II) 1.

The appeal fails and it is dismissed. The judgment of Hon. Justice H. Y. Mshelia in suit no. BOHC/MG/CV/17/16–Alhaji Mohammed B. Mulima & Ors vs Bagoms Company Limited is affirmed.

Cost of N200,000 is awarded in favour of the Respondent against the Appellants.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, Ebiowei Tobi, J.C.A. I agree with the reasoning and conclusion.

The Appellants in this appeal had approached the lower Court contending that the construction of a filling station in a residential area where they reside constituted a nuisance. The learned trial Judge, after giving due consideration to the claim, disagreed with them and held that the claim was in respect of a speculative injury since it was anticipatory. He held inter alia as follows at pages 82-90 of the printed record:
“From the evidence adduced in this case by the claimants, it appears the complaint of the claimants is fear of fire outbreak or danger of inhaling smell of petroleum. In other words, the claimants are suing to prevent foreseeable damages they are likely to face by the operation of a filling station not that they have suffered any damages so far. Can such a claim succeed under tortious liability? I do not think so… tort as a branch of law deals with damages suffered by a person as a result of wrongful conduct of another person. It does not deal with speculative injury… The claimants did not establish any damages suffered as a result of the location of the filling station in that area.”

Clearly from the claim and the evidence placed before the lower Court, the Appellants’ claim was based on their apprehension that some harm would come to them as residents in the neighbourhood with the construction of the Filling station. Unfortunately, this fear of injury does not come under the canopy of the tort of nuisance whereon they anchored their claim seeking reliefs.

It is well settled that a nuisance is an injury which confers on the person affected a right of action. It is the civil rights and obligations of the person who has sustained the injury that is in issue. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of the land.

It has to be understood that, except in a few cases were torts are actionable per se, for instance libel and slander, proof of injury is essential to a cause of action in tort, such as the tort of nuisance. In nuisance, where the claim is brought for loss of amenity by noxious fumes, noise and the like, it is necessary to show substantial injury. The burden is on the individual to establish his injury – Fafunwa V Bellview Travels Ltd (2013) LPELR-20800(CA) 24, Universal Trust Bank of Nigeria V Ozoemena (2007) LPELR-3414(SC) 27, Ejowhomu V Edok-Eter Mandilas Ltd (1986) LPELR-1071(SC) 48, E-F.

I am therefore at one with the lead judgment that the Appellants’ case is based on anticipatory and speculative injury or damages in the future arising from the siting of the filling station under construction in their residential area. Having failed to establish any injury suffered by them, their claim was bound to fail.

Based on this and the reasons advanced in the lead judgment, I also dismiss the appeal. I abide by the consequential order as to cost.

IBRAHIM SHATA BDLIYA, J.C.A.: I read in draft the judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.

I agree entirely with the views expressed therein and the conclusions arrived at that the appeal is devoid of any merit. For the comprehensive reasons in the lead judgment, I too dismiss this appeal for lacking in merit. I too affirm the judgment of the lower Court delivered on the 27th of March, 2017 in suit no. BOHG/MG/CV/17/2016.

I also abide by the consequential order made including orders as to costs.