Judgment
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.
