Lagos City Council Vs S.O. Olutimehin And Anor (1969)

LEWIS, J.S.C.

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The plaintiffs’ writ in suit LD/695/1966 in the Lagos High Court read:-

“The plaintiffs have suffered damage from the defendant from and since 1961 by reason of the fact that the defendant wrongfully caused and still causes offensive and noxious smells and vapours to come from the defendant’s Nightsoil Depot occupied by the defendant along the foreshore of Adeniji Adele Road, Lagos into and about the church vicarage and school occupied by the plaintiffs and being along the same foreshore of Adeniji Adele Road, Lagos and opposite the said Nightsoil Depot.

2. By reason of the premises the church vicarage and school occupied by the plaintiff has been and is rendered unhealthy and unfit for occupation and the plaintiffs have therefore suffered damage.

3. The defendant still continues and intends to continue to cause the said smells and vapours to come from the said premises occupied by them as aforesaid into and about the plaintiff’s premises aforesaid. The plaintiffs therefore claim:-

(a) £500 damages for the said nuisance.

(b) An injunction to restrain the defendant its servants, and/or agents or otherwise from the continuance or repetition of the acts complained of.

(c) The removal of the said Nightsoil Depot from the said place.”

On the 28th of May, 1968 Kassim Ag. J., (as he then was) gave judgment for the plaintiffs with £81.11 s.2d. costs, awarded them £200 damages and granted an injunction against the Lagos City Council in the following terms:-

“restraining the defendant council, its servants and agents, from operating its nightsoil depot at or near Holy Trinity Parish Church, Ebute Ero, Lagos so as to cause offensive smell and vapours in the said church, its compound and all the buildings therein.”

Against that decision the Lagos City Council has appealed to this Court. The plaintiffs’ claim was based on nuisance and paragraphs 7, 8, 16, 17, 18, 19, 20 and 21 of their statement of claim read:-

“7. The defendant has since the erection of the nightsoil depot been tipping human faeces into the Lagoon at the said depot storing its sewage tankers and washing them therein and generally using the depot for the operation by its nightsoil men.

8. By reason of the facts contained in paragraph 7 above, the defendant wrongfully causes offensive and noxious smells and vapour to come from the premises occupied by the defendant into and about the church vicarage and school of the plaintiffs.

16. On many occasions some of the faeces fall on the ground beside the plaintiffs premises when the vehicles are carrying them into the defendant’s compound, and the defendant will not take any step to wash same away.