NURTW v. MAHE & ORS (2020)

NURTW v. MAHE & ORS

(2020)LCN/14150(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/J/198/2013

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

NATIONAL UNION OF ROAD TRANSPORT WORKERS (NURTW) APPELANT(S)

And

(1) ALH. NASIRU MAHE (2) DR. MUHAMMAD HABEEB MAHE (3) GARBA MANSUR (4) BAUCHI LOCAL GOVERNMENT (5) REGISTERED TRANSPORT EMPLOYEES ASSOCIATION OF NIGERIA (RTEAN) (6) BAUCHI STATE ENVIRONMENTAL PROTECTION AGENCY (BASEPA) (7) THE COMMISSIONER OF POLICE BAUCHI STATE (8) THE DIVISIONAL POLICE OFFICER (TOWNSHIP DIVISION) BAUCHI RESPONDENT(S)

RATIO

THE IMPORTANCE OF THE JURISDICTION OF A COURT

In the Halbury’s Law of England Vol. 10, 4th Edition para. 715, the word jurisdiction is define as follows:
“ …. The authority which a Court has to decide matters that are litigated before it, or to take cognizance of matter presented in a formal way for its decision.”
The foregoing definition has received the blessing of the Apex Court in this Country in several pronouncements. In NIGER GATE V. NIGER STATE GOVERNMENT (2008) ALL FWLR (Pt. 408) 1938 at 1957, the word jurisdiction is defined as follows:-
“Jurisdiction is a fundamental issue, so much radical that it forms the foundation of adjudication and once a Court lacks jurisdiction, it acts in vain and in nullity no matter how well conducted a proceeding was.”
See also EBHODAGHE V. OKOYE (2004) 18 NWLR (Pt. 905) 472, ANPP V. BSIEC (2006) 11 NWLR (Pt. 992) 585, S.P.D.C. (NIG.) LTD V. SIRPI ALUSTEEL CONST. LTD (2008) 1 NWLR (Pt. 1067) 128, MUSACONI LIMITED V. ASPINALL (2013) 6-7 (Pt. 1) 1.
Let me add, that where a Court has no jurisdiction, with respect to a matter before it,the judicial basis for the exercise of any power with respect to such matter is also absent. The reason for this is not far fetched, power can only be exercised where the Court has the jurisdiction to do so. Jurisdiction is the right in the Court to hear and determine the dispute between parties whereas the power in the Court is the authority to make certain orders and decision with respect to the matter before the Court. Therefore a Court must have jurisdiction before it can proceed to exercise power. SeeBABALOLA V. OBAOKU-OTE (2005) 8 NNWLR (Pt. 927) 386 AT 403, AJOMALE V. YADUAT (No.1) (1991) 5 SCNJ 172. To determine therefore, whether or not a Court has jurisdiction to entertain a matter, it is the claim of the Plaintiff that has to be examined by the Court. Hence in the case of MADUKOLU V. NKEMDILIM (1961) NSCC (Vol.2) 374 at 379, it is stated that for Court to have jurisdiction and competence to entertain a matter, the following must be present.
(1) That Court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and;
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. If the Court is competent, the proceedings are not a nullity.
It is trite that for the jurisdiction of a Court to be in order for hearing of a matter, the three aforelisted ingredients must co-exist conjunctively. USANI V. DUKE (2006) 17 NNWLR (Pt. 1009) 610, UZOHO V. NCP (2007) 18 NWLR (Pt. 1065) 610, NJIKONYE V MTN NIG COMM. LTD (2008) 9 NWLR (Pt. 1092) 339, LADOJA V. INEC (2007) 12 NWLR (Pt. 1042) 119, THE M. V. MED. QUEEN V ERINFOLAMI (2008) 3 NWLR (Pt. 1074) 314. It is trite that when a Court has no jurisdiction to entertain a matter, such Court cannot for any reason assume jurisdiction. See SOSSA V FOKPO (2001) 1 NWLR (Pt. 693) pg. 16 at 29, AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (Pt. 504) page 327. Therefore any defect in competence of Court is fatal and any proceeding conducted in that regard will be a nullity however well conducted.MADUKOLU & ORS V. NKEMDILIM (supra). In order therefore to determine jurisdiction of a Court as in this appeal at hand, the cause of action of the Plaintiff endorsed on the Writ of Summons and in particular and most importantly the Statement of Claim has to be examined so as to discern if the Court has jurisdiction. See A.G. OYO STATE v NLC (2003) 8 NWR (Pt. 821) page 1, MESSRS N. V. SCHEEP AND ANOR V. THE MV’s ARAZ AND ANOR (2003) FWLR (Pt. 34) page 556, NEPA V ATUKPOR (2001) FWLR (Pt. 20) pg. 626, OKULATE AND 4 ORS V AWOSANYA AND 2 ORS (2000) 2 NWLR (Pt. 646) 530-536. It therefore suffices to say that it is the cause of action in a claim that has to be examined.

WHAT IS A CAUSE OF ACTION

What then is a cause of action. There are plethora of decided cases on this, just to mention but a few. See BELLO V ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876. Where Karibi Whyte JSC said thus:
“I think a cause of action is constituted by the bundle of aggregate of fact which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. This the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or entered against the Defendant. In order words, the factual situation relied upon must constitute the essential ingredient of an enforceable right or claim… The word cause of action without the adjective “reasonable” has been defined by this Court in SAVAGE AND ORS V UWECHIA (1972) 1 ALL NLR (Pt. 1) 251 at 256 …A cause of action is defined in Stroud judicial Dictionary as the entire set of circumstance giving rise to an enforcement claim. To our mind, it is in effect the fact or combination of facts which gives rise to a right to sue and it consist of two elements the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage… the law is indeed well settled that a cause of action is constituted by the bundle or aggregate of fact which the law will recognize as given a Plaintiff a substantive right to make the claim against relief or remedy being sought. In other words, the factual situation on which the Plaintiff relied to support his claim, must be recognized by the law as giving rise to a substantive right capable of being claimed or entered against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredient of an enforceable right… it is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the Plaintiffs enforcement claim against the Defendant. The facts and circumstance have to be as pleaded in the statement of claim… and so, it has to be ascertained by having recourse to the statement of claim. As can be seen from the definition, the proposition resolves into two crucial factors thus the Defendant’s wrongful act and the consequential damages to the Plaintiff. These two factors must co-exist to constitute a cause of action before the Court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the Plaintiff’s case see ESEIGBE V AGHOLOR (1990) 7 NWLR (Pt. 161) 234.”
See also the following THE MILITARY ADMINISTRATOR OF BENUE STATE AND 20 ORS V. CAPTAIN CLEMENT ABAYILO (RTD) (2001) FWLR (Pt. 35) page 605 ISHOLA V AJIBOYE (1994) 19 LRCN 35. PER ONIYANGI, J.C.A.

AN INTERLOCUTORY ORDER OF INJUNCTION

In its simplest meaning, an interlocutory injunction is an injunctive order restraining or compelling a party to act or to refrain from acting in a particular form or manner. Put in another way, it is an injunctive order for maintenance of status quo ante. See MILITARY GOVERNOR OF LAGOS STATE AND ORS V. CHIEF EMEKA OJUKWU AND ANOR (1986) 2 SC 277 at 317. Being an equitably remedy, it is not granted as a matter of course but to protect and prevent the violation of a legal right. See the case of OBEYA MEMORIAL HOSPITAL V A. G. FEDERATION (1987) 3 NWLR (Pt. 60) 325. It is also granted at the discretion of the Court and which discretion must be exercised judicially and judiciously. See AYORINDE V. A. G. OYO STATE (1996) 2 SCNJ 198, OWNERS OF MV LUPEX V NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD. (2003) 15 NWLR (Pt. 844) 469 at 488. Let me add that it is well settled that if judicial discretion has been exercised bona fide and uninfluenced by irrelevant consideration and not arbitrarily or illegally by the Lower Court, the Appellate Court will not ordinarily interfere. See UGBOMA V OLISE (1971) 1 ALL NLR 8, IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) 364. Not this alone a judicial discretion must be founded upon the fact and circumstances presented to the Court from which it must draw a conclusion governed by law and hence it must be exercised honestly in the spirit of the statute, otherwise the act done would not fall within the statute. See OPUTA JSC in THE UNIVERSITY OF LAGOS AND ORS V. C.I.O. OLANIYAN AND ORS (1985) 1 SC 295 at pp. 344-35 and 345-346. PER ONIYANGI, J.C.A.

LOCUS STANDI

Locus standi per say denotes the right of a party to institute an action in a Court of law or to seek judicial enforcement of a right or duty. Put in another way, it is the legal capacity to institute an action in a Court. It is not necessarily dependent on the success or merit of the case. See MR. PAUL EKHAGUERE V. MR EKHOSUEHI IGBINOMWANHIA (2010) LPELR 4088, TONY ANOZIA V. THE ATTORNEY GENERAL LAGOS STATE (2010) LPELR 3778, AMODU V. ABAYOMI (1992) 5 NWLR (Pt. 242) p. 503, HERBERT OHUABUNWA EMEZI V. AKUJOBI DAVID OSUAGWU & ORS (2005) 12 NWKR (Pt. 939) 340, ANAMELECHI ITEOGU ESQ V. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2009) 17 NWLR (Pt. 1171) 614, OWODUNNI V. REGISTERED TRUSTEES OF C.C.C. (2001) 10 NWLR (Pt. 675) 315, A. G. AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (Pt. 872) 288. PER ONIYANGI, J.C.A.

WHETHER OR NOT A GRANT OF INTERLOCUTORY INJUNCTION IS THE DETERMINATION OF THE SUBSTANTIVE SUIT

A grant of an interlocutory injunction as in the case at hand does not mean or suggest that the substantive suit has being determined. See CHIEF ELIAS A. OKEKE-OBA AND ANOR V. IKWUKA OKOYE (1994) 8 NWLR 605 at 602-612. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Justice Bauchi delivered on 28th day of March, 2013 wherein the learned trial Judge overruled the Preliminary Objection raised by the 3rd Defendant (Appellant) challenging the jurisdiction of the Trial Court and the competence of the suit by the 1st, 2nd, and 3rd Plaintiffs (Respondents) against the named Eight (8) Respondents in the Writ of Summons.

In the said application by the 3rd Defendant (Appellant) which is by way of a Motion on Notice brought pursuant to Order 24 Rules 2 and 4 of the High Court (Civil Procedure Rules) of Bauchi State 1987 and the Inherent jurisdiction of the Court, the following reliefs are sought:
(1) AN ORDER discharging the interlocutory order dated 21/1/2013 made by the Honourable Court.
(2) AN ORDER striking out/dismissing suit No. BA/182/2012 for want of jurisdiction.
(3) AN ORDER striking out/dismissing suit No. BA/182/2012 for non-disclosure of a reasonable cause of action.
(4) AND for such further or other Order(s) as this Honourable Court may deem fit to make in the circumstance.

The summary of the fact leading to the foregoing orders sought by the 3rd Defendant/Appellant is that the 1st, 2nd and 3rd Plaintiffs who are 1st, 2nd and 3rd Respondents in this appeal vide their endorsed Writ of Summons dated 18th day of December, 2012 and Statement of Claim dated 17th day of December, 2012, who have their residences and hail from the large and extended family of Gidan Alkali Aminu which has metamorphosed into ALKALI AMINU MEMORIAL ASSOCIATION and which members extended to neighbouring communities in Tura, Gwangwangwam, Doya and Tura wards, and who hitherto were enjoying peaceful communities until 2006 when members of the 3rd and 4th Defendants started picking and dropping communities on the street that runs through from the central market roundabout to Kofar Wambai (Gombe State) which is a major road that runs from Bakaro in the south and which link the residents of Gidan Alkali Aminu, Gwangwangwam, Doya and Tura communities to the major street that passes from Wunti to Kofar Wambai. It is the case of the Plaintiffs that the 3rd and 4th Respondents have turned the back side of the 1st and 2nd Plaintiffs residence into a

major park and in that process carrying out their activities and continued to create serious traffic hold up, congestion and inconvenience to all road users. They added that as a result of the action of the members of the 3rd and 4th Defendants several accidents leading to serious injuries and damages to vehicles had occurred. Further to these, their activities has continue to create nuisance and unbearable disturbance to the 1st and 2nd Plaintiffs and families. For the foregoing and many others, the Plaintiff wrote letters of complaint to the 1st, 2nd, 3rd 4th, 5th and 6th Defendants and had series of meeting with the 3rd and 4th Defendants with a view of getting them vacate the premises for the permanent place provided for them by the State.

When all efforts failed, then the Plaintiff approached the High Court Bauchi seeking for the following reliefs vide paragraph 30 of their Statement of Claim. (See pages 50-51 of the Record of Appeal):
(A) A DECLARATION that the act of the 3rd and 4th Defendants of carrying and off-loading passengers in front of 1st and 2nd Plaintiffs residents thereby causing congestion, traffic hold-up and accidents constitute

nuisance and violation of 1st and 2nd Plaintiffs right of peaceful enjoyment of their properties.
(B) A DECLARATION that the act of the members of the 3rd and 4th Defendants of loading/off loading passengers, at Wambai Street, starting from Central market Roundabout to Kofar Wambai (Gombe Gate) same being not a designated Motor park is illegal.
(C) AN ORDER compelling the 3rd and 4th Defendants to vacate the premises and stop carrying or off loading passengers on Wambai Street from Central Market roundabout to Kofar Wambai (Gombe Gate)
(D) AN ORDER compelling the 1st, 5th and 6th Defendants to enforce the orders of this Hon. Court in paragraph (C) above by prosecuting anybody particularly members of the 3rd and 4th Defendants who violates the order of this Hon. Court.
(E) A PERPETUAL ORDER OF INJUNCTION restraining the Defendants whether by themselves, agents, cohorts, servants, privies or any other person acting on their behalf from parading, loading/off loading of passengers at Wambai Central Market roundabout to Kofar Wambai (Gombe Gate).
(F) One Million Five Hundred Thousand Naira (N1,500,000.00) general damages jointly and

severally against the Defendants for nuisance and violating the Plaintiffs right to enjoy their lawful properties.
(G) One Hundred and Fifty Thousand Naira (N150,000.00) legal fee paid by the Plaintiffs to their Counsel to prosecute this suit.
(H) Cost of the action.

The Plaintiff along with the Writ and the Statement of Claim also filed a Motion Exparte and a Motion on Notice on 17th December, 2012 respectively. The Trial Court upon hearing of the Motion on Notice granted the following orders in favour of the Plaintiff on the 21st day of January, 2013. (See the enrolled order of the Trial Court on page 21 of the Record:
“That an order of interlocutory injunction is hereby made restraining the Respondents whether by themselves, agents, servants, privies, cohorts or any person acting on their behalf from parking, loading/off loading passengers or carrying out any commercial transaction business on Wambai Street (Gombe Road) starting from Central Market roundabout to Kofar Wambai along the major street leading to Gombe pending the hearing and determination of the substantive suit.”

This order of interlocutory injunction did

not go well with the 3rd Defendant/Appellant hence, he filed the Motion on Notice dated 28th day of January, 2013 and brought pursuant to Order 24 Rules 2 and 4 of the High Court (Civil procedure) Rules of Bauchi State 1987 and the inherent jurisdiction of the Court. Therein he sought for the following orders (see pages 63 -80 of the Record of Appeal):
(1) AN ORDER discharging the interlocutory order dated 21/1/2013 made by the Honourable Court.
(2) AN ORDER striking out/dismissing suit No BA/182/2012 for non disclosure of a reasonable cause of action.
(3) AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.

The Respondent joined issues with the 3rd Defendant Appellant by filing a counter affidavit (see pages 81-83 of the Record of Appeal). In his considered Ruling delivered on 28th day of March, 2013, the Preliminary Objection was refused. This gave birth to this appeal which is presented vide the Notice of Appeal dated and filed on 10th day of April, 2013 (see pages 126-131 of the Record of Appeal). The said Notice has three grounds of appeal. They are:-

RELIEF SOUGHT
(1) An Order setting aside the Ruling of the Lower Court and in its place striking out Suit No. BA/182/2012 as per the prayers on the Preliminary Objection filed by way of Motion dated 28th January, 2013 before the lower Court.

OR ALTERNATIVELY
(ii) An Order setting aside the interlocutory Order of the Lower Court made on 21/01/2013.
(iii) And any consequential Order the Honourable Court may deem fit to make in the circumstance.

The record of appeal was transmitted on 20th July, 2013 but deemed as properly compiled and transmitted vide the Order of this Court granted on 7th day of February, 2018. Consequent upon this, the Appellant and 1st – 3rd Respondents’ Counsel filed and exchanged their brief of argument. The 4th to 8th Respondent did not file any. Order was sought and obtained by the Appellant for the hearing and determination of the appeal on the Appellant and the 1st – 3rd Respondents brief of arguments alone on the 2nd day of February, 2018.

In the Appellant’s brief of argument filed on 17th July, 2013 and deemed as properly filed and served on 7th day of February, 2018, the following issues are presented for the

determination of the appeal:
(1) Whether the Trial Court was right to have held that it had jurisdiction (Grounds 1 & 2)
(2) Whether the Trial Court was right to have granted interlocutory injunction on an executed act.

Equally, the 1st -3rd Respondents in their brief of argument filed on 16th August, 2013 and deemed as properly filed and served on 7th day of February, 2018, the following lone issue was formulated:
(1) “Whether the Trial Court was right to have held that it has jurisdiction to entertain suit No. BA/182/2012 (Grounds 1 and 2)

The Appellant’s Reply Brief filed on 11th June, 2014 was deemed as properly filed and served on 7th day of February, 2018. Let me put on record that on the day fixed for the hearing of this appeal i.e. neither the Counsel to the Appellant nor that of the 1st – 3rd Respondent was in Court. By the return of service of the Hearing Notice on the Appellant and the 1st – 3rd Respondents, by the bailiff on 20th day of February, 2020, the Court in exercise of its powers under Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 both the brief of argument of the Appellant and that of

the 1st – 3rd Respondents were deemed as properly argued and adopted. For the determination of this appeal therefore, the issues distilled by the Appellant are adopted.

ISSUE ONE
Whether the Trial Court was right to have held that it had jurisdiction (Grounds 1 and 2)

On behalf of the Appellant, it is contended that what confers jurisdiction on the Court is the claim(s) of the Plaintiff which can be gleaned from the Writ of Summons and the Statement of Claim before the Court. He relied on the following cases DAPIANLONG V DARIYE (2007) 8 NWLR (Pt. 1036) pg. 332 at 136; EMEZI V OSUAGWU (2005) 30 WRN 1 and FGN V. OSHIOMHOLE (2004) 3 NWLR (Pt. 860) p. 305 at 321 Ratio 1. He argued that based on the documents before the Trial Court, the fact that the Appellant’s activities have been going on for over 7 years, that the Alkali Aminu Memorial Association constitute about 4 to 5 blocks of that from the junction to Gwagwagwa Gombe Gate, (Kofar Wambai), that other families have their house after the 4th to 5th blocks of flat of the Alkali Aminu House, the land complaint of where the Appellant carry out its business is a Federal High Way and does

not constitute an entrance to 1st – 3rd Respondents are not denied. He submitted that the non denial of these facts amounted to an admission and which the trial Court ought to have taken cognizance of before delivering its ruling and clothing itself with jurisdiction. He relied on the case of HONDA PLACE LTD V. G.M.H.N. LTD (2006) 10 WRN p. 134 at 138 – 139. Ratio 1. It is also his argument that the trial Court failed to consider the issue of locus standi raised by the Appellant. He relied on the case of IRONBAR V. FED. MORTGAGE FIN (supra) Ratio 1, EMEZI V. OSUAGWU (2005) 30 WRN p.1 at 4-5 Ratio 3, PFIZER SPECIALITIES LTD V. CHYZOB PHARM LTD (2007) 1 WRN 153 at 163-164 Ratio 6, 7, 8 and 10. He argued further that it is only the person who is vested with the aggregate of the enforcement right in a cause that has the standing to sue. He relied on the cases of A. G. ANAMBRA STATE V. A. G. FEDERATION (2007) 12 NWLR (Pt. 1047) p. 4 at 23 Ratio 12; FOMBO V. R.S.H.P.D.A. (2005) 52 WRN p. at 7 Ratio. 2.

Further, he submitted that nuisance is concerned with condition or activities which unduly interfere with the use or enjoyment of land. He relied on the

case of U.T.B. NIG. V. OZOEMENA (2007) 13 WRN p. 125 at 136 -137 Ratio 11 & 12. He added that only a person who has an interest in land or property that can institute an action in nuisance. He cited the case of OLUWANIYI V. ADEWUNMI (2008) 13 NWLR (Pt. 1104) p. 387 at 398 Ratio 12. He accused the trial Court of not considering the facts deposed to in the Appellant’s affidavit in support of its motion that the road, Wambai Street (Gombe Road) is a Federal High Way and which the Court should ordinarily take judicial notice of. He referred to Section 122(2) (k) of the Evidence Act. He relied on the case of MANTEC W.T. (NIG) LTD V PTF (2008) 8 WRN P. 42 at 47 Ratio 8. He also contend that the Appellant has not disclose any reasonable cause of action to warrant the trial Court cloth itself with jurisdiction and refusing the Preliminary Objection of the Appellant. He relied on the following cases CHEVRON NIG LTD V. L.D.N. LTD. (supra) Ratios 2 & 4, FOMBO V. R.S.H.P.D.A. (2005) 52 WRN 1 at 7 Ratio 2, RINCO CONST. CO LTD VS VEEPEE IND. LTD (2006) 17 WRN p. 119 at 123 -125 Ratio 2 & 3. He argued that the cause of action of the Respondent is an

anticipated cause of action which had not arisen. He cited BAMGBEGBIN V. ORIARE (2009) 46 WRN 1 at 11 Ratio 8 & 9, IRONBAR V FED MORTGAGE FIN (2009) 46 WRN p. 146 at 154 Ratio 4. He argued that in nowhere did the Respondents ever notified the Appellant to warrant a cause of action. He cited the case of USI V KOGI STATE GOVT (2004) 44 WRN p. 68 at 78 Ratio 10. He added that the fact that the Appellant came in occupation of the premises two years before the Respondent built their houses i.e. 7 years for the Appellant and 5 years for the Respondent does not help the case of the 1-3 Respondents. He urged the Court to resolve the issue against the 1st -3rd Respondents.

For the 1st – 3rd Respondents, it is argued that the Appellant only outlined certain facts that were said to have been admitted by the 1st -3rd Respondents without showing how those facts robbed the Lower Court of its jurisdiction. It is his case that paragraph 5 of the 1st – 3rd Respondents’ affidavit and paragraphs 5-9 of their counter affidavit all goes to show the numerous efforts of the Respondents to stop the nuisance created by the Appellant but all effort is to no avail and

hence the result to the process leading to the Order of injunction. He added that the assertion of the Appellant that the 1st – 3rd Respondents did nothing for the period of 7 years is not correct. He submitted that the only issue that called for consideration is whether the activities of the Appellant has been shown to affect 1st and 2nd Respondent negatively more than others. He referred to paragraphs 4(a-s) of the affidavit in support of the Motion on Notice of the 1st – 3rd Respondents. By those averments he contended that the Respondents are directly affected by the nuisance created by the Appellant. He relied on the case of OLUWANIYI V. ADEWUNMI (2008) 13 NWLR (Pt. 1104) pg. 387 at 396 Ratio 11 and 12, S.P. D. C. LTD .V. ADAMKUE (2003) 11 NWLR (Pt. 832) pg. 533 at 546. Ratio 8 and 9. He argued that the contention of the Appellant that his activities is at the back of the house of the 1st and 2nd Respondents and on the Federal High Way is of no moment and that what is important is whether the nuisance affects the Respondents.

On the issue of locus standi, he conceded that what it means is the competence of a Plaintiff to sue. He relied on his

argument in paragraphs 1.6 and 1.7 of his brief to buttress the fact that the 1st and 2nd Respondents are very competent to sue because they are directly affected by the activities of the Appellant. He also referred to paragraphs 19, 22 and 23 of the Statement of Claim of the Respondents contained on pages 48 and 49 of the record. He relied on the case of UKEGBU V. NBC (2007) 14 NWLR (Pt. 1055) Pg. 551 at 556 -558 Ratio 1, 2, 3, 4, 5, 6, 7 and 8. By the foregoing he submitted that the Respondent has disclosed reasonable cause of action. He cited the case of NDUKA V. OGBONNA (2011) 14 NWLR (Pt. 1127) pg. 153 at 156 R. 2 and 3. On the contention of the Appellant that the houses of the Respondents were built five years ago hence the nuisance complained of predates the residence of the Respondents, he submitted that the argument though desperate but a futile effort to mislead the Court. He conceded to the fact that the word “half a decade used by Respondent in paragraph 4.10 (a) is an error and that paragraph 4 (b and c) of their affidavit at pages 24-25 of the record as the period the 1st and 2nd Respondents inherited the house from their late father Alhaji

Mahe in the year 2000. He said it is an honest mistake to use the word ‘decade’ in place of century. He added that it is trite that no matter how intelligent and well put, submission of Counsel can never be or replace the Affidavit evidence before the Court which is unchallenged. He relied on the following cases OLANIYAN V. ADENIYI (2007) 3 NWLR (Pt. 1020) pg. 1 at pg. 8 Ratio 9, ALHASSAN V. ABU ZARIA (2011) NWLR pg. 417 at 440 Ratio 26. He urged the Court to discountenance the argument of the Appellant on this issue.

Having carefully read through the argument of respective Counsel on this issue, the question that comes to mind is whether or not the Court has the jurisdiction to entertain the case of the 1st – 3rd Respondents.

The complaint of the Appellant culminating into issue of lack of jurisdiction ranges from the alleged issue of difference in time of occupation of the premises in issue, that the place occupied by the Appellant is a Federal High Way, lack of locus standi to sue, absence of cause of action, absence of the ingredients of establishing a case of nuisance. As I said before, all the foregoing are what the Appellant

relied upon to challenge the jurisdiction to the trial Court.
In the Halbury’s Law of England Vol. 10, 4th Edition para. 715, the word jurisdiction is define as follows:
“ …. The authority which a Court has to decide matters that are litigated before it, or to take cognizance of matter presented in a formal way for its decision.”
The foregoing definition has received the blessing of the Apex Court in this Country in several pronouncements. In NIGER GATE V. NIGER STATE GOVERNMENT (2008) ALL FWLR (Pt. 408) 1938 at 1957, the word jurisdiction is defined as follows:-
“Jurisdiction is a fundamental issue, so much radical that it forms the foundation of adjudication and once a Court lacks jurisdiction, it acts in vain and in nullity no matter how well conducted a proceeding was.”
See also EBHODAGHE V. OKOYE (2004) 18 NWLR (Pt. 905) 472, ANPP V. BSIEC (2006) 11 NWLR (Pt. 992) 585, S.P.D.C. (NIG.) LTD V. SIRPI ALUSTEEL CONST. LTD (2008) 1 NWLR (Pt. 1067) 128, MUSACONI LIMITED V. ASPINALL (2013) 6-7 (Pt. 1) 1.
Let me add, that where a Court has no jurisdiction, with respect to a matter before it,the judicial

basis for the exercise of any power with respect to such matter is also absent. The reason for this is not far fetched, power can only be exercised where the Court has the jurisdiction to do so. Jurisdiction is the right in the Court to hear and determine the dispute between parties whereas the power in the Court is the authority to make certain orders and decision with respect to the matter before the Court. Therefore a Court must have jurisdiction before it can proceed to exercise power. SeeBABALOLA V. OBAOKU-OTE (2005) 8 NNWLR (Pt. 927) 386 AT 403, AJOMALE V. YADUAT (No.1) (1991) 5 SCNJ 172. To determine therefore, whether or not a Court has jurisdiction to entertain a matter, it is the claim of the Plaintiff that has to be examined by the Court. Hence in the case of MADUKOLU V. NKEMDILIM (1961) NSCC (Vol.2) 374 at 379, it is stated that for Court to have jurisdiction and competence to entertain a matter, the following must be present.
(1) That Court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within

the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and;
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. If the Court is competent, the proceedings are not a nullity.
It is trite that for the jurisdiction of a Court to be in order for hearing of a matter, the three aforelisted ingredients must co-exist conjunctively. USANI V. DUKE (2006) 17 NNWLR (Pt. 1009) 610, UZOHO V. NCP (2007) 18 NWLR (Pt. 1065) 610, NJIKONYE V MTN NIG COMM. LTD (2008) 9 NWLR (Pt. 1092) 339, LADOJA V. INEC (2007) 12 NWLR (Pt. 1042) 119, THE M. V. MED. QUEEN V ERINFOLAMI (2008) 3 NWLR (Pt. 1074) 314. It is trite that when a Court has no jurisdiction to entertain a matter, such Court cannot for any reason assume jurisdiction. See SOSSA V FOKPO (2001) 1 NWLR (Pt. 693) pg. 16 at 29, AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (Pt. 504) page 327. Therefore any defect in competence of Court is fatal and any

proceeding conducted in that regard will be a nullity however well conducted.MADUKOLU & ORS V. NKEMDILIM (supra). In order therefore to determine jurisdiction of a Court as in this appeal at hand, the cause of action of the Plaintiff endorsed on the Writ of Summons and in particular and most importantly the Statement of Claim has to be examined so as to discern if the Court has jurisdiction. See A.G. OYO STATE v NLC (2003) 8 NWR (Pt. 821) page 1, MESSRS N. V. SCHEEP AND ANOR V. THE MV’s ARAZ AND ANOR (2003) FWLR (Pt. 34) page 556, NEPA V ATUKPOR (2001) FWLR (Pt. 20) pg. 626, OKULATE AND 4 ORS V AWOSANYA AND 2 ORS (2000) 2 NWLR (Pt. 646) 530-536. It therefore suffices to say that it is the cause of action in a claim that has to be examined. What then is a cause of action. There are plethora of decided cases on this, just to mention but a few. See BELLO V ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876. Where Karibi Whyte JSC said thus:
“I think a cause of action is constituted by the bundle of aggregate of fact which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or

remedy being sought. This the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or entered against the Defendant. In order words, the factual situation relied upon must constitute the essential ingredient of an enforceable right or claim… The word cause of action without the adjective “reasonable” has been defined by this Court in SAVAGE AND ORS V UWECHIA (1972) 1 ALL NLR (Pt. 1) 251 at 256 …A cause of action is defined in Stroud judicial Dictionary as the entire set of circumstance giving rise to an enforcement claim. To our mind, it is in effect the fact or combination of facts which gives rise to a right to sue and it consist of two elements the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage… the law is indeed well settled that a cause of action is constituted by the bundle or aggregate of fact which the law will recognize as given a Plaintiff a substantive right to make the claim against relief or remedy being sought. In other words, the factual situation on which

the Plaintiff relied to support his claim, must be recognized by the law as giving rise to a substantive right capable of being claimed or entered against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredient of an enforceable right… it is therefore settled that a cause of action constitutes a bundle of facts and circumstances giving rise to the Plaintiffs enforcement claim against the Defendant. The facts and circumstance have to be as pleaded in the statement of claim… and so, it has to be ascertained by having recourse to the statement of claim. As can be seen from the definition, the proposition resolves into two crucial factors thus the Defendant’s wrongful act and the consequential damages to the Plaintiff. These two factors must co-exist to constitute a cause of action before the Court. It does not take account of whether the cause of action will succeed or fail. A cause of action is valid irrespective of the strength or weakness of the Plaintiff’s case see ESEIGBE V AGHOLOR (1990) 7 NWLR (Pt. 161) 234.”
See also the following THE MILITARY ADMINISTRATOR OF BENUE STATE AND 20 ORS V. CAPTAIN CLEMENT ABAYILO (RTD)

(2001) FWLR (Pt. 35) page 605 ISHOLA V AJIBOYE (1994) 19 LRCN 35.
In the light of all the foregoing and having regard to the complaint of the Appellant and the facts deposed to in his supporting affidavit as compared with facts averred in the affidavit in support of the Motion on Notice, it is my humble view that all the three conditions herein before enumerated are not only co-existing but present. The Respondents’ main complaint is that the presence of the Appellant in the identified premises and the allege noise which generates as a result of the alleged operations and activities of Appellant constitutes nuisance. Both at that and this stage, it is not for the Court to make pronouncement on whether or not those allegation are true or not or whether or not the fact averred by the Appellant that the Road is a Federal High Way. Doing that will put the Court in a position of determining the substantive matter prematurely. See MILITARY ADMINISTRATOR, FED. HOUSING AUTHORITY V. ARO (1991) 1 NWLR (Pt. 168) 405, GOMWALK V OKWUOSA (1996) 3 NWLR (Pt. 439) 681 at 689, GODDY OKEKE AND 12 ORS V CHIEF OZO OKOLI AND 5 ORS

(2000) 1 NWLR 641 at 645. Therefore, it is my humble view that there exist a cause of action and which complaint is within the competence of the trial Court and that the trial Court has the jurisdiction to entertain the suit. This issue is therefore resolved against the Appellant.

ISSUE TWO
Whether the Trial Court was right to have granted interlocutory injunction on an executed act.

The argument of the Appellant is that the interlocutory order dated 21/1/2013 by its nature has fully determined the 1st – 3rd Respondents’ case before the Lower Court and there is nothing left to be decided in the substantive suit. He added that the purpose of an interlocutory order is to preserve the res and maintain the status quo and not destroy it, and where the order sought is such that the matter would be determined finally the Court should not grant same. He added that the action complained of is nuisance as a result of the parking, loading and off loading of passengers by the Appellant which activities have been going on since 2006 and this is 2013, that is roughly about 7 years now before the interlocutory order was granted. He added that the

act against which injunction was sought and obtained is a completed act and that the Order was wrongly obtained and should have been set aside by the trial Court but instead, the lower Court refused to consider the submissions of Counsel. He referred to the cases of YUSUFF V. INT’L INST. OF AGRIC (2008) 32 WRN p. 168 at 176 Ratio 5, JOHN HOLT NIGERIA V HOLTS AFRICA WORKERS UNION OF NIGERIA AND CAMEROUN (1963) 3 NSCC 315. It is his case that the essence of granting an interlocutory injunction is to preserve the status quo and not to destroy it. It is also his contention that the Respondents did not disclose that where the Appellant carry out its business is a Federal High Way and not directly on their land as claimant. The Court went ahead and concluded that the act complained of is not an already completed act. He referred to the case of ADEFARATI V. GOV. ONDO STATE (2005) 4 WRN 93 at 97 Ratio 3 and 4. For this, he submitted that the Trial Court erred in law when it granted the interlocutory order and that the Respondent has no locus standi to sue. He referred to paras. 16-24 of the Statement of Claim at pages 48 and 49 of the record of proceedings and the

case of OREDOYIN V AROWOLO (1989) 4 NWLR (Pt. 114) 172 AT 187, OLORIODE V. OYEBI (1984) 5 SC 1 at 30. He argued that the Trial Court for the foregoing ought to set aside the interlocutory order. He referred to the case ofSUN INST. NIG. PLC V LMB STOCK BROKERS LTD (2006) 4 WRN p. 142 at 147-148 Ratio 1, 2, 4 and 5. He urged the Court to resolve the issue in favour of the Appellant and against the 1st – 3rd Respondents.

The Respondents’ argument on this issue is that the submission of the Appellant that the interlocutory order granted has fully determined suit No. BA/182/2012 by the Appellant is a clear misconception on the part of the Appellant’s Counsel. In support of this argument he referred to pages 22-23 of the record of appeal where the prayers sought by the Respondents is contained and the affidavit in support of the Respondents’ motion. He argued that a completed act presupposes that the act is finished and it will not be revisited again by anybody. Loading and off-loading of passengers complained off is not finished as deposed to in paragraph 9 of the counter affidavit. He urge the Court to hold that the order granted did

not determine the substantive case and not on a completed act. He added that the activities if the Appellant is still continuing despite the order of injunction granted. It is his case that this is an act of disobedience of the Court’s order and that the Appellant is in contempt and has not approached the Court with clean hands. He relied on the cases of ILIASU V AHMADU (2011) 13 NWLR (Pt. 1264) pg. 236 at 240 Ratio 4, OKWUTE V NWADIKE (2009) 5 NWLR (Pt. 1134) page 360 at 367 Ratio 9. He urge the Court to discountenance the Appellant’s argument on the issue of locus standi. He referred to OLUWANIYI V. ADEWUNMI (2008) 13 NWLR (P. 1104) page 387 at 302 Ratio 4, 5 & 6. He urge the Court to dismiss the appeal for lacking in merit.

In the main, the argument of the learned Counsel representing the Appellant is centered on two main points, that the order granted is on a completed act based on the reason that the Appellant had been on the premises 7 years ago before the Respondents occupation of the premises just five years ago and that Respondent has no locus standi which is denied by the Respondent. Let me start by providing meaning to the word

Interlocutory Order of Injunction and locus standi.

IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) 364. Not this alone a judicial discretion must be founded upon the fact and circumstances presented to the Court from which it must draw a conclusion governed by law and hence it must be exercised honestly in the spirit of the statute, otherwise the act done would not fall within the statute. See OPUTA JSC in THE UNIVERSITY OF LAGOS AND ORS V. C.I.O. OLANIYAN AND ORS (1985) 1 SC 295 at pp. 344-35 and 345-346. In the appeal at hand, the complaint of the Respondents before the Trial Court is against the alleged continuing nuisance allegedly perpetrated by the Appellant occasioned by their occupation of the premises identify and in which area the Respondents also resides. These facts prima facie in my view warranted the exercise of the trial Court’s discretion to grant the interlocutory injunction so that parties would maintain the status quo ante bellum.

I now proceed to consider the allegation of absence of locus standi on the part of the Respondents canvassed by the Appellant. Locus standi per say denotes the right of a party to institute an action in a Court of law or to seek judicial enforcement of a right or

duty. Put in another way, it is the legal capacity to institute an action in a Court. It is not necessarily dependent on the success or merit of the case. See MR. PAUL EKHAGUERE V. MR EKHOSUEHI IGBINOMWANHIA (2010) LPELR 4088, TONY ANOZIA V. THE ATTORNEY GENERAL LAGOS STATE (2010) LPELR 3778, AMODU V. ABAYOMI (1992) 5 NWLR (Pt. 242) p. 503, HERBERT OHUABUNWA EMEZI V. AKUJOBI DAVID OSUAGWU & ORS (2005) 12 NWKR (Pt. 939) 340, ANAMELECHI ITEOGU ESQ V. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2009) 17 NWLR (Pt. 1171) 614, OWODUNNI V. REGISTERED TRUSTEES OF C.C.C. (2001) 10 NWLR (Pt. 675) 315, A. G. AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (Pt. 872) 288.

Bearing the foregoing in mind and after a careful examination of the processes filed by the Respondents before the Trial Court, i.e. the statement of claim and the reliefs therein sought, it is not in dispute that the Respondents are resident in the area, and also the Appellant is also carry on his business in the said area. The complaint is an alleged incessant noise which the Respondents alleged constituted a nuisance to their peaceful occupation of their houses. In my candid view, the foregoing are

eloquent fact to support the locus standi of the Respondents to complain. This does not mean that the grant of the interlocutory injunction per say has predetermine the substantive suit by the Respondents. I am not on the same page with the Appellant on his stand that the trial Court by the grant of the interlocutory order of injunction has prematurely determined the substantive suit. A grant of an interlocutory injunction as in the case at hand does not mean or suggest that the substantive suit has being determined. See CHIEF ELIAS A. OKEKE-OBA AND ANOR V. IKWUKA OKOYE (1994) 8 NWLR 605 at 602-612.

I therefore have no reason in the circumstance of the facts leading to the grant of the interlocutory injunction in this case to fault the exercise of the discretionary power of the trial Court.

On that note, this issue is answered in the affirmative and resolved against the Appellant.
In conclusion, this appeal is lacking in merit and it is accordingly dismissed.

I award a cost of N100,000.00 against the Appellant and in favour of the 1st, 2nd and 3rd Respondents jointly.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the lead

judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the reasoning and conclusion dismissing the appeal for lacking in merit. I abide by the order as to costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

Appellant Counsel absent For Appellant(s)

H. Umar Esq. Deputy Director MOJ, Bauchi State For Respondent(s)