LAGOS CITY COUNCIL v N. L. ISIKALU (LD/59A/64) [1964] NGHC 32 (9 November 1964)

**LAGO****S** **C****I****T****Y** **C****OUN****C****I****L** **(****APP****E****LLAN****T****S****)** **_v_.** **N.** **L.** **ISIKALU** **(RESPONDENT)** **(1964)** **All** **N.L.R.** **541** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 9th November, 1964 **C****as****e** **Num****b****er:** LD/59A/64 **Before:** Taylor, C.J. The respondent brought two actions in the Magistrates' Court against the appellants, claiming the sum of £138.10/-and £196.10/- respectively being special and general damages for the act of trespass committed by the appellant in towing away the respondent's car where she had parked it both at Martins Street and at Abibu Oki Street and for wrongful detention thereof. The two streets in question are streets in which "No parking" signs are exhibited pursuant to Legal Notice No. 141 of 1960. At the trial, the appellants submitted that the car was towed away because the Local Authority is empowered by law to abate nuisance on the highway. The magistrate, however, held that the appellants failed to prove that the respondent's car caused obstruction on the material dates and time; he found the respondents' case proved and awarded her £204. 15/- damages on both claims and £31 costs. The appellants appealed on the ground that the magistrate erred in finding that the appellants trespassed when they removed the car LG. 411 from Abibu Oki Street and Martins Street, Lagos. They contended that since the upkeep of the streets, their care and maintenance etc. are vested in the L.C.C. by virtue of sections 148(_a_) and 188 of the Lagos Local Government Act, 1958, the L.C.C. is right in law to remove a car parked in a street where parking is prohibited as such a car constituted a nuisance on the highway. It was contended, by the respondent, that a car parked in a "No Waiting" street does not _per_ _se_ constitute a nuisance. Parties generally agreed, however, that the appellant is liable for wrongfully detaining the respondent's car, consequently, the point was not raised on appeal. **_HELD_**** _:_** (1) The act of the plaintiff was an obstruction in that it prevented the public from using the whole road for free passage as they are entitled to do. Whether such obstruction had become a nuisance or not, in the sense of its impeding traffic, is not material for the law empowers the defendant Council to remove such obstruction "so as not to be a nuisance." (2) If a car parked in a "No Waiting" street is an obstruction in fact, then it follows that by virtue of section 141(9) of the Lagos Local Government Act, the Council, having the power to keep the streets clear of obstructions so as not to be a nuisance, cannot commit a trespass by the very act of removing such obstruction. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _i_ _n_ _pa_ _r_ _t_ _:_ _D_ _a_ _m_ _a_ _g_ _e_ _s_ _a_ _wa_ _r_ _d_ _e_ _d_ _f_ _o_ _r_ _t_ _r_ _e_ _s_ _pa_ _s_ _s_ _s_ _e_ _t_ _a_ _s_ _i_ _d_ _e_ _._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _R_ _e_ _y_ _n_ _o_ _l_ _d_ _s_ _v_ _._ _P_ _r_ _e_ _s_ _te_ _i_ _g_ _n_ _U_ _.__D.__C_ _._ (1896)1 Q.B. 604. _A_ _tt_ _o_ _rne_ _y_ _-Ge_ _n_ _era_ _l_ _v_ _._ _W_ _ilc_ _o_ _x_ (1938) 3 A.E.R. 367 _Acts_ _&_ _L_ _aws_ _re_ _ferred_ _to:__-_ _Lagos_ _Local_ _Government_ _Act,_ _1958,_ _Cap._ _93,_ _sections_ _141(9);_ _148(a)_ _and_ _188._ _Removal_ _of_ _V_ _ehicles_ _(Lagos)_ _Bye_ _Laws,_ _(1959),_ _L_ _.N._ _222_ _of_ _1959._ _Legal_ _N_ _otice_ _N_ _o._ _14_ _1_ _of_ _1_ _960._ _Da_ _v_ _i_ _d_ , for the Appellants. _Bentley_ , for the Respondent. Taylor, C.J. of Lagos:-I shall try to set out in a summarised form the plaintiff's claims as per the particulars of claim filed in the Magistrates Court of Lagos, which particulars have not altogether been easy to understand in the form in which they appear. There appears to have been two separate and distinct causes of action arising on two different days, to wit the 29th August, 1963 and the 9th September, 1963, from the act of the defendant Council in towing away the plaintiff's car where she had parked it. On the first occasion of the 29th August, 1963 the incident took place at Martins Street Lagos and the claims are for: Loss of use of the car £3 0 0 Payment of £5 0d wrongfully demanded £5 0 0 Money wrongfully obtained from Plaintiff £5 5 0 Damages for wrongful detention £25 0 0 Damages for Trespass to the said car £100 0 0 £138 10 0 There are two comments to be made in respect of this claim. The first is the duplication of the sum of £5. 5. 0d. and the second is the duplication of general damages-the one for wrongful detention and the other for trespass, both arising from the original act of towing away. Be it noted that on this occasion the car was delivered back to the plaintiff on her paying the sum of £5. 5. 0 _d_. On the second occasion the incident took place at Abibu Oki Street Lagos and the claims are for:- Loss of use of the car .. .. £9 0 0 Cost of repair of the damage £37 0 0 The return of the car or its value £450 0 0 Damages for wrongful detention £50 0 0 Alternatively Conversion of the said car £500 0 0 Trespass to the said car £100 0 0 Since the car was returned before the action was heard, the claims for the return of the car or its value, and for conversion of the car are no longer sustainable, leaving the claim on this head as £196. 10. 0 _d_. Here too the claim for general damages is duplicated in the sense that general damages are claimed for wrongful detention and trespass to the car. The claim proceeded to hearing and the trial Magistrate found the plaintiff's case proved and awarded a total sum of £204. 15. 0 _d_. on both claims and costs assessed at £31. 10. 0 _d_. On the first claim the sum of £83. 5. 0 _d_. was awarded the plaintiff and £121. 10. 0 _d_. on the second claim. Against this Judgment the defendant Council has appealed and the only point argued by learned Counsel for the Council was ground 1 of the additional grounds of Appeal which urges that:- "The learned Magistrate erred in law in finding that the defendants trespassed when they removed the car LG. 411 from Abibu Oki Street and Martins Street Lagos." No ground of appeal was urged on the issue of damages being awarded for the trespass and wrongful detention and I refrain from dealing with the subject. Mr David said that the facts were not in dispute and that the main issue was whether the appellant Council was right in law to remove the vehicle from Abibu Oki Street and Martins Street. Mr David made it clear, and quite rightly too, that the detention of the car by his client could not be supported in law, but that as far as the act of towing the car away was concerned, his client was empowered to abate any nuisance on the Highway, that the parking of a car in a street where parking is forbidden by law constitutes a nuisance on the Highway. My attention was drawn in particular to the case of _Reynolds_ _v._ _P_ _resteign_ U.D.C. 1896 1 Q.B. 604. Mr Bentley on the other hand held that a car parked in a no waiting street did not _per_ _se_ constitute a nuisance. That the Common Law empowered the Council to remove an obstruction from the Highway but in doing so the Council ran the risk of a civil action for trespass. The evidence before the trial Magistrate and the Magistrate's own findings are at one that the two streets in question were streets in which No Parking signs were exhibited and are in fact covered by Legal Notice No. 141 of 1960. Again it is conceded that the upkeep of the streets, their care and maintenance etc. are vested in the Lagos City Council by virtue of section 148(_a_) and 188 of the Lagos Local Government Law. The wording of section 141(9) on which Mr David relies is of importance. It says that:- "It shall be the duty of the Council within the town: to make, keep and maintain clear and in good order and repair all streets and sewers together with all buildings, machinery, works and things belonging thereto which have or shall become vested in the Council by virtue of Section 188, and to provide for the drainage of surface water. The Council shall have power to direct or alter the course of any of the said streets or sewers and to keep the same clear of obstructions so as not to be a nuisance or injurious to health; Mr David said that he was not relying on the Removal of Vehicles (Lagos) Bye Laws 1959, and, if any support is to be found for his argument based on section 141(_a_) of the Law above referred to then it must be contained in the last sentence which I have underlined above. Do the words "to keep the same (i.e. the streets) clear of obstructions so as not to be a nuisance" cover a car parked in a "No Waiting" street? In short it has to be shown (1) that such car was an "obstruction" and (2) that its presence would be a "nuisance." If a car parked under such conditions is an obstruction in fact, then it follows that by virtue of section 141(9) of the above mentioned Act the Council having the power "to keep the streets clear of obstructions so as not to be a nuisance", cannot commit a trespass by the very act of removing such obstructions. The power is not one to keep the street clear of obstructions that have become nuisances. It is a wider power to prevent any obstruction from being a nuisance. It seems to me therefore that the test that was applied i.e. as to whether the car was at the time of its removal a nuisance was not the test envisaged by section 141(_g_) but the wider test of whether if not cleared it would be a nuisance. Where the learned Magistrate first went wrong was in holding in effect that the words "obstruction" and "Nuisance" were synonymous terms and that the powers of the Council could be exercised only when a nuisance in the sense of an actual impediment to traffic had taken place. The learned Magistrate said this:- "The defendant in my opinion has failed woefully to prove that the Plaintiff's car caused obstruction on the material dates and time." And a little later on he said that:- "Surely if the witness has taken so long a time to wait to clear an obstruction then it follows that there was no obstruction." In the case of _Attorney-Geneal_ _v._ _Wilcox_ 1938 A.E.R. 367 at 371 Farwell L.J. said that:- "Where there is a public right of way-a public footpath or a public right of way of a wider nature-over a defined portion of land, the public have the right to use that piece of land for the purpose of passing and re-passing..." And a little later on the Judgment continues in these words:- "Their right, _p_ _ri_ _m_ _a_ _f_ _ac_ _i_ _e_ , is to use any part of the particular portion of the land for the purpose of passing and repassing. Therefore, _prima_ _facie_ , anything which is placed in the defined area in question which obstructs in any smallest possible degree the right of the public to use the whole of the way is an obstruction. Nevertheless, it does not follow that, because there is, or may be, something which is an obstruction, in the sense that thereby a member of the public cannot put his foot on that particular portion of the highway which is now occupied by the post or pole, but was formerly unoccupied by such post or pole, that of itself entitles the highway authority to any relief against a person who has caused that particular obstruction." The act of the plaintiff was an obstruction in that it prevented the public from using the whole of the road for free passage as they are entitled to do. Whether such obstruction had become nuisance or not in the sense of its impeding traffic is not material for the law empowers the defendant Council to remove such obstruction "so as not to be a nuisance." For these reasons the plaintiff's action insofar as it is based on the act of towing being a trespass must fail and to that extent and the damages awarded for trespass for that act of towing must be set aside. The appeal therefore succeeds to that extent only. The Order I make is as follows:- 1\. The appeal succeeds on the issue of trespass and the awards of £50 in each Cause of action as general damages for trespass are hereby set aside. 2\. The appeal which was not argued in respect of the other Causes of action must fail and is dismissed and the award of the trial Magistrate of £104. 15. 0d. on that head is affirmed. 3\. The award of £31. 10. 0d. costs will stand in view of the fact that Counsel for the defendant Council did not base the action of his client on the law to which Mr David referred me during the hearing of this appeal. 4\. In this Court I take into account the partial success of the appellant in the appeal and will hear Counsel on the question of costs. J.E.C. _David_ asks for costs. Says out of pocket expenses are £31. Our only appeal was on this particular ground. I ask for an additional £25. _Ben_ _t_ _le_ _y_ says that the appeal should be allowed without costs to either side. The points raised now are new grounds never raised in the court below. _Da_ _v_ _i_ _d_ _:_ Everything that was raised in this appeal was raised in the court below. _C_ _ou_ _r_ _t_ _:_ In my view the respondent having succeeded on the claim of £104. 15. 0d. (and the appellant on £100), has succeeded on the major part of the case and should normally be entitled to costs in this appeal. Mr Bentley asks that costs be borne by each party to this appeal and in my view that is the right Order to make. Each party will bear its own costs.