LAGOS CITY COUNCIL v IDOWU SOFOLA (LD/70/64) [1964] NGHC 39 (14 December 1964)

**LAGO****S** **C****I****T****Y** **C****OUN****C****I****L** **(****APP****E****LLAN****T****S****)** **_v_.** **ID****O****W****U** **S****O****F****OL****A** **(****R****ES****P****O****N****DE****N****T****)** **(1964)** **All** **N.L.R.** **579** **Div****i****si****o****n****:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 14th December, 1964 **C****as****e** **Num****b****er:** LD/70/64 **Before:** Taylor, C.J. The respondent brought an action, against the appellants, claiming the sum of £200 for special and general damages for trespass committed by the appellant's agents in towing away the respondent's car on 20th November, 1963 and detaining it for a period of four hours. Respondent's car was parked somewhere on the untarred Tinubu side of the last "No waiting this Side" sign post and in a position between the electric pole B and the Telephone Exchange. The magistrate held on the fact that the respondent's car was wrongfully removed and awarded him £45 damages and 20 guineas costs. The appellants appealed against the judgment on the ground that the magistrate erred in law and on the facts when he held that the plaintiff's car was wrongfully removed, and argued that although vehicular traffic have no right of passage on the portion of the untarred road where the plaintiff's car was parked, behind the lamp post, yet pedestrians have a right of access there, and any blockage of such right on the highway is an obstruction which the Council is empowered to remove by virtue of section 141(9) of the Lagos Local Government Act, 1958. **_HELD_**** _:_** (1) Parking of a car, cycle or whatever the object may be, on any part of the highway, where the public have a right of passage, is an obstruction within the, meaning of section 141(9) of the Lagos Local Government Act but that fact _ipso_ _facto_ does not justify the towing away or removal of the obstructing vehicle or article. (2) Although the parking of the car, where it was so parked, may cause members of the public, pedestrians, slight inconvenience of a little deviation in direction, the act is not a nuisance within the meaning of section 141(9) of Lagos Local Government Act, 1958. _Appe_ _a_ _l_ _di_ _s_ _mis_ _s_ _ed_ _._1__ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Lago_ _s_ _Cit_ _y_ _Co_ _u_ _nci_ _l_ _v_ _._ _N_ _._ _L_ _._ _Isi_ _k_ _al_ _u_ , LD/59A/64. _A_ _tt_ _o_ _rne_ _y_ _-Ge_ _n_ _era_ _l_ _v_ _._ _W_ _ilc_ _o_ _x_ (1938) 3 A.E.R. 367. _La_ _w_ _s_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Lagos_ _Local_ _Government_ _Act,_ _1958,_ _Cap._ _93,_ _section_ _141(9)._ _Removal_ _of_ _Vehicles_ _(Lagos)_ _Bye_ _Laws,_ _1959,_ _L._ _N._ _222_ _of_ _1959._ _R_ _oa_ _d_ _Tr_ _a_ _ffi_ _c_ _A_ _c_ _t_ _,_ _Cap_ _._ _1_ _8_ _4_ _s_ _ect_ _i_ _o_ _n_ _2_ _._ _Kotun_ for David, for the Appellants. K. _Sofola_ , for the Respondent. _Court:_ I have inspected the locus as Counsel requested and I have taken into account the positioning of the "No Waiting this side" signs, particularly those at the junction of Broad Street and Odunlami Street leading right down to the Marina. Do Counsel wish to say anything further on this point £. M.A. _Kotun:_ I wish to add nothing more. K. _Sofola:_ In view of the fact that these sign posts were placed at the junction right down to the Marina, it was intended that the places intended to be prohibited are from the last one in Odunlami St. down to the Marina. Prohibition is not intended to govern the last sign post beyond the Chase Manhattan Bank, more so when these sign posts face the direction of the general hospital only. From time to time every day people park beyond the last pole and Council have said nothing about it. _C_ _ou_ _r_ _t_ _:_ I have heard Counsel and there is nothing that has been said that in any way affects the Judgment I am about to deliver by way of moving me to take a different view to that taken in the Judgment. The plaintiff/respondent sued the defendant/appellant Council for the sum of £200 being general and special damages for trespass committed by their servants in towing away the plaintiff's car on the 20th November, 1963 and detaining it for a period of four hours. The learned trial Magistrate on the facts accepted by him, and which have not been questioned in this appeal, found in favour of the plaintiff in whose favour judgment was given for £45 damages and costs assessed at 20 Guineas. The defendant Council has appealed against this judgment and only one ground of appeal was argued which states that:- "The learned Magistrate erred on the law and on the facts when he held that the plaintiff's car was wrongfully removed." That the Council's powers in the circumstances of this case on appeal is not derived from the Removal of Vehicles (Lagos) Bye Laws 1959 is a point not contested by Mr David, learned Counsel for the appellant, who relies on the decision I gave in the case of _lagos_ _City_ _Council_ _v._ _Mrs_ _N.L._ _Isikalu_ LD/594/64 on the 9th November, 1964. That decision was based on the facts peculiar to that case and the interpretation put on section 141(9) of the Lagos Local Government Law, the pertinent portion of which section reads thus:- "...The Council shall have power to direct or alter the course of any of the said streets or services and to keep the same clear of obstructions so as not to be a nuisance or injurious to health." The peculiar facts of that case being that the respondent's car was admittedly parked on the main street on the tarred side of the road covered by the sign "No waiting" or "No parking." In the case now on appeal the facts are somewhat complicated, and at the request of Counsel I have visited the area in question, and have endeavoured to put down on paper in the form of a sketch relevant points or positions of signposts etc. which are important to the decision. At this stage it is essential to refer to the facts accepted by the learned Trial Magistrate. The Magistrate said this of the plaintiff's case:- "After a careful consideration of the evidence of the parties I accept as; true the plaintiff's evidence as to where he stated he parked his car." The Plaintiff's evidence on that point is as follows:- "I drove my car LD 8338 along Broad Street, Lagos. I stopped my car between the Investment House and the Telephone Exchange along Broad Street, Lagos..." A little later on he said that:- "When I stopped I parked my car along the untarred portion of the street. I was still facing Tinubu Square. There is still a wide portion of the untarred portion of the street between the off-side portion of my car and the end of the tarred road. The space between the off-side of my car and the tarred portion of the road is almost 4 feet. In fact there is still an electric pole on my right hand side between my car and the tarred road." Now in this evidence one question of fact, and I think the most important in this case on appeal is settled, and that is that the plaintiff's car was parked somewhere on the Tinubu side of the last "No Waiting this Side" sign and in a position between the electric pole "B" and the telephone exchange. In this respect I would refer to the notes made by the Learned Trial Magistrate-of his visit to the locus where he said _inter_ _alia_ s that:- "The plaintiff and the 1st plaintiff's witness showed a point at space between the gate of the telephone exchange building and the building of the investment house where the plaintiff's car was parked on the day of incident. The plaintiff also showed the electric pole which is in front of the place where he alleged he parked his car." The next point for determination is whether, bearing in mind the position of the plaintiff's car which as I said before is on the Tinubu side of the last "No Waiting this Side" sign, the signs cover parking where the car was parked. In order to decide this, one has to look at the position of the sign posts in and around Broad Street and the relevant traffic conditions prevailing in that particular area. In the first place it is obviously a very busy street in which traffic lights have been installed at the junction of Broad Street and Odunlami Street. The two "No Waiting This Side" posts face the race course direction of Broad Street and were the only two "No Waiting this Side" Council posts on that side or the other for that matter for quite a long distance on both sides of Broad Street. This is to be compared with the existence of at least four such sign posts at the junction of this street where it leads to the Marina, a comparatively shorter street. Did the Council intend that by the placing of these two signposts facing the race course direction parking along the whole of that side of Broad Street was to be forbidden or only parking between the traffic lights and the last "No Waiting This Side" sign post £ The defence set up at the hearing was as deposed to by plaintiff witnesses 1 and 2 that:- "The car LD 8338 was parked on the tarred portion of the road on Broad Street, in front of the Chase Manhattan Bank. The car LD 8338 was so parked that it blocked the road for vehicles coming from the direction of general hospital." If, of course, the car was so parked in front of the Chase Manhattan Bank, it would be covered by the "No Waiting This Side" sign post, and I would find no difficulty in applying the principle of the _Lagos_ _City_ _Council_ _v_ _M_ _rs_ _N_ _.L._ _I_ _sikalu_ bearing in mind the busy nature of the street. I have no doubt that from all these circumstances stated above that these two "No Waiting This Side" signposts were meant to forbid parking between the junction of Broad Street/ Odunlami Street right up to the last of such signposts and no further. Any car parking on this side in that area would undoubtedly hinder traffic swinging in from Odunlami Street and turning right to go to Tinubu Square when traffic coming from Tinubu Square is stationary on the left by the C.M.S. Bookshop. That I have no doubt was the main reason for the appearance of those sign posts where they are. For these reasons then I hold that the facts are clearly distinguishable from the facts in _Lagos_ _Cit_ _y_ _Council_ _v_ _M_ _rs_ _N_ _._ _I_ _sikalu_ , not to mention the fact that the vehicle concerned in this case on appeal was parked on the untarred portion of the road and behind an electric light post. Mr David for the appellant further urged that a highway is defined in section 2 of the Road Traffic Act as:-"Highway" includes any roadway to where the public have access" and that that being the case, even though vehicular traffic have no right of passage on the portion of the untarred road where the plaintiff's car was parked, behind the lamp post, yet pedestrians have a right of access there, and any blockage of such right is an obstruction and the Council is empowered to remove such obstruction so as not to be a nuisance to such pedestrians by virtue of section 141(9) of the Lagos Local Government Law. That the parking of a car on any part of the highway is an obstruction in the sense that while the car, cycle or whatever the object may be, even the erection of posts as in the case of _Attorney-General_ _v_ _._ _Wilcox_ (1938) 3 A.E.R. 367, is on that particular part of the highway where the public have a right of passage, the public are prevented from using that particular part of the road, is an obvious fact. To hold that that fact ipso facto justifies the towing away or removal of the obstructing vehicle or article is a proposition to which I am not prepared to ascribe. The parking of the car where it was so parked may cause members of the public, pedestrians, the very slight inconvenience of a little deviation in direction, a comparative trifle and one which in my judgment cannot possibly justify the action of the appellant Council in towing away the obstruction because in the circumstances of this case on appeal it can never be "a nuisance" within the meaning of section 141(9) of the Lagos Local Government Law. For these reasons I dismiss the appeal with costs which I assess at 20 Guineas in favour of the respondent. **_F_**** _o_**** _o_**** _tn_**** _o_**** _te_**** _s_** 1 _E_ _d_ _i_ _t_ _o_ _r'__s_ _N_ _o_ _t_ _e_ _s_ _:_ The distinction between this case and _L_ _.__C.C_ _._ _v_ _._ _N_ _L_ _._ _I_ _sika_ _l_ _u_ is that in the instant case there was no sign prohibiting parking and therefore the act is not a nuisance within the provisions of section 141(9) of the Lagos Local Government Act, 1958. A car parked on the highway in such circumstances cannot be towed away by the local authority unless it in fact creates a nuisance. In the Isikalu case, however, there was a prohibition against parking where her car was parked, and this entitled the local authority to tow her car away as being capable of constituting a nuisance within the meaning of section 141(9) of the Lagos Local Government Act, 1958.