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

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


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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.

17. During the rainy season when the Lagoon over flows, the water carries faeces into the premises of the plaintiffs. And whenever there is high tide the compound of the plaintiffs which is adjacent to the defendants’, is always filled with faeces after the water or tide would have receded.

18. The plaintiffs have sent many delegations and series of petitions to the defendant complaining of the nuisance the defendant is creating in its premises and which nuisance injuriously affects the plaintiffs right of occupation and enjoyment of their own premises.

19. The defendant intends, unless restrained from so doing, to continue the said nuisance.

20. The plaintiffs claim

(a) £500 damages

(b) an injunction to restrain the defendant from continuance or repetition of the said injury or commital of any injury of a like in respect of the property and the removal of the said nightsoil depot from the said place.

21. Whereof the plaintiffs claim as per their writ of summons.”

Mrs. Akinrele for the appellant argued a number of grounds of appeal on its behalf and first of all argued together grounds 1 and 3 which read:-

“1. The learned trial judge misdirected himself in law in holding that negligence had been proved when in fact it had not been pleaded.

3. The learned trial judge misdirected himself in law in failing to take cognisance of the state of the law that no action for nuisance will lie for an act authorised by statute unless such act is done negligently.”

It was her submission that the Lagos City Council was acting under a statutory duty in disposing of the nightsoil at the site in question at Adeniji Adele Road, Lagos and that accordingly the only way that the plaintiffs could succeed would be if negligence on the part of the Lagos City Council was established as it was otherwise discharged from liability for nuisance; she further contended that negligence was never either pleaded or proved. In support of her contention, she relied on subsections (5) and (13) of section 140 of the Lagos Local Government Act 1959 which read:- “140. It shall be the duty of the council within the town:-

(5) to keep and maintain in good order and repair all public latrines, urinals, cesspits, dustbins and other receptacles for the temporary deposit and collection of rubbish, and public bathing and washing places, and to provide for the removal of all refuse and filth from any public or private place, and provide for the removal of nightsoil and disposal of sewage from all premises and houses in the town, so as to prevent injury to health.

(13) to undertake all other works, matters and services necessary for or conducive to the public safety, health or convenience, as it shall think fit, or which the Minister may from time to time declare by notice published in the Gazette to be transferred to the council.”

It was her submission that the appellant had the right to act as it did either:-

(1) because the duty to remove nightsoil under s. 140(5) necessarily implied the disposal also of that nightsoil, and she relied for the principle of things necessarily incidental to the main power being included on the case of Hammersmith & City Railways Co. v. Brand (1869) 4. H.L. 171; or

(2) because the duty to dispose of sewage under section 140 (5) included the disposal of nightsoil; or

(3) because the disposal of nightsoil was covered by section 140(13) as a work of the Council which was conducive to public safety, health or convenience. If this Court accepted that the Council had established a duty under section 140, then Mrs. Akinrele referred us to Halsbury’s Laws of England 3rd Edition Volume 30 paragraph 1330 which reads:-

“1330. Statutory authorisation. Where the legislature directs that a thing shall at all events be done or authorises certain works at a particular place for a specific purpose or grants powers with the intention that they shall be exercised, although leaving some discretion as to the mode of exercise, no action will lie at common law for nuisance or damage which is the inevitable result of carrying out the statutory powers so conferred. This is so whether the act causing the damage is authorised for public purposes or private profit. Acts done under powers granted by persons to whom Parliament has delegated authority to grant such powers, for example under provisional orders of the Board of Trade, are regarded as having been done under statutory authority. In the absence of negligence it seems that a body exercising statutory powers will not be liable to an action merely because it might, by acting in a different way, have minimised an injury.”

And also to a series of English authorities establishing that in the performance of a statutory duty the Authority could only be liable in nuisance if negligence was established. The principle that a statutory authority is only liable in nuisance for the performance of one of its duties if negligence is established is, in our view, perhaps best set out in Marriage v. East Norfolk Rivers Catchment Board [1950] 1 K.B. 284 where Tucker, L.J., at page 293 said:-

“In arriving at this decision I have given careful consideration to the arguments to the contrary of Mr. Marshall, for the plaintiff, which I will now consider. He submits that, although the remedy forthe violation of a legal right is in general to be found in s.34, sub-section 3, this subsection has no application to a case where the damage suffered is caused by a nuisance unnecessarily created by the board in the exercise of their statutory powers, or to negligence on their part, and that, in order to invoke the protection of the Act, the onus is on the board to prove that they acted without negligence and that the nuisance created was necessary on them by statue.  In support of this contention he relies on the well-known words of Lord Blacbum in Geddis v. Proprietors of the Bann Reservoir 3 App. Cas. 430, 455, 456, where he said: ‘For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, ‘negligence’ not to make such reasonable exercise of their powers. I do not think that it will be found that any of the cases (I do not cite them) are in conflict with that view of the law’; and of Lord Dunedin in Manchester Corporation v. Farnworth [1930] A.C. 171, 183, where he said:-

‘The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain commonsense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.’ In neither of these cases, nor in others where similar language is used, was the court concerned with a compensation clause. Where there is no such clause and where the legislature has authorized the execution of specific works, the court will be vigilant to see that an injured party is not deprived of his remedy unless the language of the statute and the nature of the works authorized necessitate such a conclusion.”

See also  Inec & Anor. V Musa & Ors (2003) LLJR-SC

and Singleton, L.J., at page 300 said:-

“To establish a case of negligence it must be shown that there was neglect of some care which the board were bound to exercise towards someone, and it is not enough for the plaintiff to say that, if the spoil had been placed somewhere else, he would not have suffered in the way he did. The general position must be borne in mind, and the standard care required is that of a reasonably competent man carrying out work of this kind with due regard for the rights of all. Unless there is shown to be a breach of that, the plaintiff does not prove negligence.”

Also in Longhurst v. Metropolitan Water Board [1948]2 All E.R. 834 where at page 839, Lord Porter said:

“All these, however, are cases of defendants who were not acting under statutory powers and, whatever may be the liability of private individuals, that of statutory authorities acting under statutory powers has always been held to be more limited…An example showing the difference between the position of a statutory authority acting in the course of its duty and that of a private individual is to be seen in Green v. Chelsea Waterworks Co. (1894), 70 L.T. 547, where the defendants were held not liable for damage due to the bursting of a main without any negligence on their part. Pope v. Fraser & Southern Rolling & Wire Mills Ltd. (1938), 55 T.L.R. 324 contains an example of negligence in failing to remedy a danger caused in the course of carrying out the authorised work, but which was or should have been known to the defendants and was not remedied by them in a reasonable time. Had the danger been unknown to the defendants and had they had no reasonable ground for suspecting it, the result would have been different.”

Further in Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193 Lord Watson contrasted the difference between the result of a work which is a duty and one that is a power when at page 212 he said:-

“On the other hand, I do not think that the Legislature can be held to have mentioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two propositions-in the first place, that such are the imperative orders of the Legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the Legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the Legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the person empowered to deter-mine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose.”

It is also necessary to bear in mind the words of Finlay, L.J., in Edington v. Swindon Corporation [1939] I K.B. 86 where at page 92 he said:-

“I therefore, cannot resist the conclusion that the true view here is that Parliament has thought fit to authorise the defendants to do a thing which at the least might, and I would go further and say almost certainly would, interfere with the rights of the owners of private property. If that is so, it seems to me that the case is at an end. One cannot go into questions of degree. The interference may be very slight, or it may be more serious. These matters are for the consideration of the defendants subject, of course, to the very important fact that the court would intervene if they acted unreasonably-and I should think they would act unreasonably if, having a choice of equally available sites, they chose to put their shelter on a site which would do really serious dam-age to adjacent property.”

Mrs. Akinrele finally submitted that nowhere in the writ or statement of claim was negligence as such relied on because the plaintiffs submitted their claim on the basis of wrongful acts of nuisance. Dealing first with the argument in regard to sections 140(5) and (13) of the Lagos Local Government Act 1959, we would agree that the imposition of a duty on a statutory corporation normally implies the carrying out of things incidental to that duty. We think however that in so far as the carrying out is likely to interfere with the ordinary rights of private citizens it must be strictly construed and we do not see that a necessary incident to the duty to remove nightsoil is its disposal. Anything incidental to the removal itself would be covered but the final disposal is not, so that so far as the final disposal is concerned the ordinary rules of nuisance will apply. We are fortified in this view because section 140(5) goes on to deal specifically with the disposal of sewage, so that removal of nightsoil is starkly contrasted with the disposal of sewage. That brings us to Mrs. Akinrele’s second argument that disposal of sewage covers the disposal of nightsoil, but we do not think it does. Sewage is defined in the Shorter Oxford English Dictionary as “refuse matter conveyed in sewers” and whilst we were not referred to any definition of night-soil it is well known and indeed conceded by both counsel that it did not pertain to the disposal of refuse by way of sewers. Moreover, it was just because there were no sewers that nightsoil had to be collected in Lagos. It follows that the power to dispose of sewage was not exercised here as no use of sewers was made for the disposal of nightsoil. Finally, we do not think section 140(13) can be craved in aid unless it is first shown that the actual work is conducive to public safety, health or convenience.

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This requirement does not arise in the other duties imposed by subsections (1) to (12B) of section 140 but it is there if the Council seeks to cover other works as a duty. In other words, if the work, matter or service that the Council does is done by virtue of one of the enabling provisions of subsections (1) to (12B) of section 140 then the actual work will be a duty whether or not in fact such work, matter, or service (as the case may be) is conducive to public safety, health or convenience so that the only way the Council could be held liable in nuisance for any such work would be if it had been done negligently. In contrast if the Council seeks to rely on section 140(13) it must first show that the actual work, matter or service is conducive to public safety, health or convenience, that is to say the work matter or service itself must be performed in a manner conducive to public safety, health or convenience and, if it is not,then, though the Council may otherwise have the power to perform the work, as for instance, under section 141 of the Lagos Local Government Act, 1959, it is not done under a statutory duty so that the work is liable to the ordinary liability for nuisance and liability is not limited to when the Council does such work negligently.

We are not satisfied that the actual work here was conducive to the public safety, health or convenience as shown by the evidence on the record of the hazards to health that it caused. The Lagos City Council could not therefore rely on a statutory duty for its acts at the site in question. As we have found that a statutory duty did not exist here for what was done, the necessity to establish negligence in a statutory authority, as shown by the cases to which we have referred earlier, would not arise, but we would wish to add, nevertheless, that in our view paragraphs 16 and 17 of the statement of claim, which we have quoted, did specifically plead acts of negligence, and though the word “negligence” was not used, the doctrine of res ipsa loquitur would apply in the context so that if these acts were proved then if even they had been done under a statutory duty it would have been negligently carried out, and there was in fact evidence from the plain-tiffs’ witnesses which the learned trial judge believed of these acts. In his judgment Kassim, Ag. J., (as he then was) said:

“The main defence of the defendants is that they were acting under a statute whose terms are imperative and not merely permissive. The statute, as I said before, is Lagos Local Government Act, 1959 and the relevant section is 140(5). They say that it has not been proved that they were negligent. However, I find as a fact from the evidence before me that they were. It is in my opinion unreasonable to dispose of 60,000 gallons of faeces and sludge daily at so small an open jetty and with no more precaution than spraying the air, which was not at all confined, with deodorants. The direction of the wind must sometimes make the spraying nugatory; and rain must for a good part of the year make it ineffective. I accept the evidence of the witnesses for the plain-tiffs and reject the evidence of the witnesses for the defendant in so far as it differs from the evidence of the plaintiffs’ witnesses.”

On any score therefore, had it been necessary, we would have found liability for nuisance established in respect of the particular acts set out in paragraphs 16 and 17 of the statement of claim, but of course these acts are separate from the nuisance of offensive smell in respect of which negligent acts were not pleaded though the Council became liable for them on the general rules of nuisance as we have found that the disposal of nightsoil was not a statutory duty. Mrs. Akinrele then argued her ground of appeal: “The learned trial judge misdirected himself in law and in fact when he failed to give consideration to exhibits ‘G’, ‘K’ and ‘L’ and thereby came to a wrong conclusion.”

The learned trial judge said in his judgment as to this-‘exhibits ‘G’, ‘K’ and ‘L’ are, in my opinion, irrelevant to the point at issue, and this court is not bound by the opinions stated in them.” It was the submission of Mrs. Akinrele that exhibit ‘G’, (a 1956 report to the Federal Government of Nigeria by consulting engineers on main drainage in Lagos), exhibit ‘K’ (a 1964 United Nations report to the Federal Government of Nigeria on Metropolitan Lagos) and exhibit ‘J’ (a 1966 report by consulting engineers to the Federal Government of Nigeria on sanitary and industrial sewarage, storm drainage and refuse disposal in the Metropolitan of Lagos) showed that the Council was acting reasonably and making every effort to take expert advice on what was admittedly a very complicated problem, and that it could not be said to have acted negligently in using the site in question pending the finding of a satisfactory alternative site. This argument, however, presupposes that there is an issue of negligence to be determined and as we have already decided that the Council was not exercising a statutory duty, the rules of law applicable to nuisance generally apply and unlike in negligence, a person is liable in nuisance, even if he has taken reasonable care, if in fact the act he does unduly interferes with the comfortable and convenient use and enjoyment of land, and the question whether a particular act is or is not a nuisance is a question of fact to be determined in each case. The learned trial judge having found that there was such an undue interference with the church property of the plaintiffs in this case the question of whether or not the Council took reasonable care does not arise, therefore, and it is not necessary for us to consider the three exhibits on that basis in order to deter-mine whether Mrs. Akinrele’s contention in regard to their effect is correct. Mrs. Akinrele then argued together two grounds of appeal which read:-

“6. The learned trial judge misdirected himself in law and in fact in 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 when in fact it is not certain that this is feasible having regard to the peculiar nature of nightsoil.

7. The learned trial judged misdirected himself in law and in fact in restraining the defendant/applicant at all having regard to the evidence before him.” It was her submission that if no negligence by the Council was proved it would not be liable to any injunction, but if this Court was against her on that, was we have indicated we are, then, she argued, the injunction granted should not have been granted as it was unreasonable and oppressive and the learned trial judge should not have considered himself bound to grant the injunction as he did when he said:-

“With regard to plaintiffs’ prayer for an injunction I borrow the words of Sergeant J. in the case of Blainbridge v. Chertsey Urban Council (1915) L.J.R.Ch. 626 at 629. As the plaintiffs have established that a nuisance is occasioned to their church, I am bound to grant them relief in the shape of an injunction, although that may involve considerable expenditure and considerable hardship on the part of the defendant council in question.”

There were authorities which clearly showed that there was a discretion in the court in granting an injunction and that it would not be exercised if to do so would be oppressive or unreasonable to a defendant. She referred us to Halsbury’s Laws of England 3rd Edition, Vol. 21 para-graph 742 which reads:-

“Extent of damage and injury. The injunction may be granted even where no damage has been caused, and where the injury complained of has ceased after action brought, but before trial, although in the latter case the Court may, in the exercise of its discretion, refuse to interfere. Mere interference with a legal right does not, however, ipso facto entitle a plaintiff to an injunction, and mere inconvenience is not enough to entitle a party to an injunction. There must be violation of an enforceable right, and the violation must be of a substantial character. An injunction will not be granted where the plaintiff has a remedy in his own power. So, also, in the absence of any covenant not to do an act, an injunction will be refused where the damage complained of as the result of the act is not susceptible of appreciation. Where special damage is essential to the particular cause of an injunction unless he proves that special damage has been or will necessarily be occasioned to him by the act complained of.

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Moreover, the Court will not order a party to do an act unless it is satisfied that he can do it, and sometimes, where the granting of the injunction would place the defendants in a position of extreme difficulty and might prove unnecessarily oppressive, the Court will, instead of granting an injunction, make a declaration establishing the plaintiff’s right to relief, and give the defendants a reasonable time to do what is necessary to cure the mischief, with liberty to the plaintiffs to apply at the end of that time for an injunction.”

In Attorney—General v. Acton Local Board (1883) 22 Ch.D. 221 Fry J., at 232 said:-

“But in the present case to grant the injunction asked for would involve most serious consequences. It would require the defendants to stop up all the drains or sewers which have been made from houses in Acton since November, 1876. Those houses, according to the evidence before me, are very numerous, and, on the balance of convenience and inconvenience, bearing in mind also that no substantial damage is shown to have accrued to the plaintiffs, I think I should be doing wrong in granting such an injunction.”

In Islington Vestry v. Hornsey Urban Council [1900] 1 Ch. 695 Lindley M.R. at page 706 said:-

“The fact that if an injunction were granted a nuisance would be a necessary consequence unless the defendants take steps to prevent it affords them no defence to the action even if it be true that they cannot prevent it without obtaining further statutory powers. It is the defendants’ duty to keep the Hornsey sewage out of the plaintiffs’ sewer, and the defendants cannot effectually urge their inability to perform their duty as a reason for the court doing nothing. Upon this point Attorney-General v. Birmigham Corporation (1858) 4 K. & J. 528, and Attorney-General v. Colney Hatch Lunatic Asylum (1868) L.R.4 Ch. 145. are well-known authorities. At the same time, the difficulty in which an injunction may place public bodies, if compelled to close sewers under their control but in daily use, has induced the court in many cases not to exert its jurisdiction to the utmost, where it is not absolutely essential to do so. Attorney-General v. Acton Local Board 22 Ch.D.221 and other cases following it, and cited in the argument, are illustrations of this reluctance. Having regard to these decisions and to the conduct of the plaintiffs, we think that all that the court ought to do in this case at the present moment is to make a declaration establishing the plaintiffs’ right to relief and to give the defendants reasonable time to do what is necessary to prevent the flow of the Hornsey sewage down the Stroud Green sewer to the injury of the plaintiffs, and to give the plaintiffs liberty to apply for an injunction at the end of that time. This will give the defendants time to make other arrangements, and we trust will induce the plaintiffs to assist them in their endeavours to do what is necessary to drain their own district without invading the plaintiffs’ rights. Such an order will, we think, be more just than an injunction now with a stay of execution. Such an injunction, however carefully worded, might prove unnecessarily oppressive.”

On the facts, Mrs. Akinrele said that whilst it was true that the defendant’s own expert, the city engineer to the Lagos City Council, said in evidence:-

“My report recommended that the site be moved to Ajeloco market on the foreshore of Adeniji Adele Road by Idunmagbo Avenue, where it would be treated. If my report is not accepted, we will have to remain where we are. It will take eighteen months to come to another site.”

Nonetheless the setting up of a disposal unit with plant for proper treatment processing was so complicated and so expensive that at least 2 years would be needed and she accordingly asked us at the most to make a suspended injunction in general terms. She however conceded that it would be possible to give an immediate mandatory injunction in regard to the specific items of negligent behaviour alleged by the plaintiffs in paragraphs 16 and 17 of their statement of claim, which were found proved as in any case she said the Lagos City Council did not accept that it was responsible for what was in fact found proved against it under paragraph 16 so that there would be no difficulty in carrying out an injunction in terms of paragraph 16 of the statement of claim, and whilst an injunction in terms of paragraph 17 would be a severely limiting factor it could be carried out. Mr. Sodipo for the plaintiffs for his part conceded that an immediate full mandatory injunction as granted by the learned trial judge was too oppressive but he asked for one in terms of para-graphs 16 and 17 of the statement of claim and submitted that an injunction in full terms should be suspended for only 6 months.

This aspect of this appeal has caused us great concern as we appreciate that the problem of disposal of nightsoil in a confined and built up area such as Lagos is a very difficult one. We think that to require the Lagos City council to effect a complete removal of the nuisance by smell to the church property adjacent to the present nightsoil disposal site within 6 months, as asked for by counsel for the plaintiffs, would be both unreasonable and oppressive. We cannot however accept Mrs. Akinrele’s request that the Lagos City Council be given a further two years. The Council has known of this action since 1966 and it is already 18 months since the injunction was granted in the High Court, albeit that this Court on a motion in September, 1968 stayed execution of the judgment of the High Court pending the determination of this appeal, and the Council should already have taken active steps to prepare to remedy the nuisance. We cannot allow the Council to sit back and do nothing and in all the circumstances and bearing in mind especially that the Council’s own expert witness put the period needed at 18 months in 1966, we think it would be neither oppressive or unreasonable to require the Council to fully remedy the nuisance within that period of 18 months. We wish to emphasize that it is not enough for the Council to start to take steps to remedy the nuisance, but it must complete the steps necessary to remove the nuisance within that time. There has in fact been no appeal before us in regard to the award of £200 damages and, as we have found that the learned trial judge was right to come to the conclusion that a nuisance was committed, that award automatically remains. We however set aside the order of injunction that the learned trial judge made and in its place order:-

1. That the Lagos City Council shall ensure that no faeces fall on the ground beside the plaintiffs’ premises when vehicles are carrying faeces into the defendant’s compound at Adeniji Adele Road, Lagos;

2. That the Lagos City Council shall ensure that faeces discharged into the lagoon at its site at Adeniji Adele Road, Lagos are not flooded into the compound of the plaintiffs; and

3. That within eighteen months of the date of this judgment the Lagos City Council shall ensure that no offensive smells and vapours from its site at Adeniji Adele Road, Lagos shall be carried to the compound of the plaintiffs. Subject to the amended injunction that we have already granted, the appeal is dismissed with costs to the plaintiffs/respondents assessed at 40 guineas.

Other Citation: (1969) LCN/1645(SC)

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