LAGOS CITY COUNCIL V. OLUTIMEHIN

• Pages: 356-367

LAGOS CITY COUNCIL V. OLUTIMEHIN

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356

LAGOS CITY COUNCIL V. OLUTIMEHIN

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5

LAGOS CITY COUNCIL

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APPELLANT

V

1.

S. 0. OLUTIMEHIN

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2.

S. 0. SODIPO

(Trustees of the Holy Trinity

Parish Church, Ebute-Ero,

Lagos and for themselves and

for and on behalf of the

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Vicar and Members of the

Holy Trinity Church, Ebute-

Ero, Lagos)

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RESPONDENTS

SUIT NO. SC 161/1968

SUPREME COURT OF NIGERIA

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LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

FATAI-WILLIAMS, J.S.C.

21st November, 1969.

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Law of Torts - Nuisance by Statutory Corporation - Negligence if a Statutory

duty but not if only the performance of a power - S.140(5) of Lagos Local

Government Act 1959 - Removal of nightsoil is not disposal of sewage -

Under S.140(13) must prove actual work conducive to public health - Injunction

not automatic and not awarded if oppressive or unreasonable to defendant -

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Lagos City Council given 18 months to remedy nuisance by smell.

ISSUES:

1.

How does the legislature expect the discretionary powers and general powers

it confers by statute to be exercised?

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2.

Under what circumstances will a statutory authority be made liable in nuisance

for acts done in the performance of a statutory duty?

3.

Once it has been established that a statutory authority was not acting in the

performance of a statutory duty when it committed acts of nuisance will the

authority then be liable in nuisance?

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FACTS:

The plaintiffs instituted an action against the defendants for damages for nuis-

ance, and injunction to restrain the defendants from continuing such nuisance and

a removal of the defendants Depot from the location. The nuisance was caused

by offensive and noxious smells and vapours from the defendant's Nightsoil Depot.

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Judgment was given in favour of the plaintiffs, with £200 damages and costs. The

Court also granted the injunction sought. The defendants appealed against the de-

cision, contending that no action for nuisance can lie for an act authorised by

statute unless such act is done negligently, and that such negligence had not been

proved.

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HELD:

1. When the terms of the statute are not imperative, but permissive, when it is left

to the discretion of the persons empowered to determine whether the general

powers committed to them shall be put into existence or not, the fair inference