Bauchi State Environmental Protection Agency (Basepa) & Anor V. Malam Sani Isa & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.