Iboje Itambong & Ors V. Michael Akonye (1964)

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TAYLOR JSC

The three plaintiffs, on behalf of themselves and the people of Awi-Arochuku Road, Calabar, sued the defendant in the High Court of Calabar claiming, to quote the writ:

“The sum of £2000 (Two Thousand Pounds) sterling being general and special damages for trespass in that on or about the month of August, 1959 the defendant his workmen or servants unlawfully broke and entered the land of the plaintiffs at Awi between mile 23 and 24 on the Calabar Arochuku Road destroyed the plaintiffs farms and excavated and removed 809 cubic yards of gravels without the consent or authority and in flout of the right of possession of the plaintiffs to the said land.”

The main defence, and the one on which the appeal turns, is contained in paragraph 4 of the Statement of Defence which reads thus:

“The defendant denies paragraph 5 of the Statement of Claim. Alternatively, the defendant states that if he, his workmen and/or servants broke and entered and excavated and removed gravel from the said land, which is denied, they did not exceed the distance from the centre line of the said Calabar-Arochuku Road as is authorised by law and the said gravel was taken for the maintenance of the said Road and/or on behalf of and by the permission, authority and instruction of the authorities responsible for the upkeep of the said Calabar-Arochuku Road namely the Public Works Department, Calabar.”

The Learned trial Judge, after hearing the parties, dismissed the action holding inter alia that:

“In short I have to say that the Plaintiffs have failed to prove that the Defendant was a trespasser since he was acting on the authority of his employer the Ministry of Works and therefore I am of opinion that this action must fail.”

The plaintiffs being dissatisfied with the Judgment have appealed to this Court and have filed eight grounds of appeal in respect thereof. With the exception of the Omnibus ground the other seven grounds raise the following two issues:

1. Did the Ministry of Works in point of fact authorise or permit the defendant either directly or through Mr. Asika, the Provincial Engineer, to do the work the subject matter of the alleged trespass?

2. If the defendant was so authorised by the said Ministry, was the Ministry empowered to delegate its authority?

The trial Judge was satisfied on the evidence before him that the first point must be resolved in the defendant’s favour and we think that on the evidence of Mr. Asika, the Provincial Engineer, no other conclusion could have been reached. It is true that ground 4 of the grounds of appeal complains that Asika was the Provincial Engineer Calabar only up till July, 1959 whereas the trespass complained of was in August, 1959. The evidence of D.W.3 Stephen Akanu, one of the Contractors working with the defendant, is however to the effect that the work began in Easter of 1959 and was completed in August of that year. It is clear therefore that the authority was given and the work commenced at a time when Asika was the Provincial Engineer.

The only point of substance requiring serious consideration is whether the Ministry of Works, a body empowered by law to maintain the Calabar-Arochuku Road, can delegate that authority to the defendant. Learned Counsel for the plaintiffs/appellants did not in the High Court, and does not contend that the Ministry of Works has not the right to dig gravel by the Calabar-Arochuku Road at mile 23-24 for the purpose of maintaining that road. His point is that it cannot delegate this power to an independent Contractor. Learned Counsel also urged that even if the Ministry of Works dug gravel as aforesaid, the appellants would be entitled to compensation as owners of the land. This is a point that has not arisen on the pleadings or the evidence adduced in the Court below and on which we are not prepared to comment. The action on appeal before us is one of Trespass pure and simple. Mr. Uwemedimo, who appeared for the respondent, contended that if the Public Works Department can dig for gravel at the site aforesaid, then that department can give permission to, or engage anyone else to do so.

We have received no assistance from Learned Counsel on either side by way of Legal authorities for, or against the proposition contended for by either of the parties to the case on appeal. It is conceded that by virtue of S. 11 of the Building Regulation Ordinance of the 4th June, 1936, as amended by E.R.No. 4 of 1952 the Authority responsible for the maintenance of the Calabar-Arochuku Road is entitled to take “within 50 feet of the central line of such road such materials as may be necessary for the maintenance of the road.” Our attention has not been drawn to any provision or law which says, or from which the inference or implication can be drawn, that such a power cannot be delegated. In this connection we think the case of Hardakar v. Idle District Council [1896] 1 Q.B. 335 is in point:

The head note to the case reads thus:

“A District Council, being about to construct a sewer under their Statutory powers, employed a Contractor to construct it for them. In consequence of his negligence in carrying out the work a gas-main was broken, and the gas escaped from it into the house in which the plaintiffs (a husband and wife) resided and an explosion took place, by which the wife was injured, and the husband’s furniture was damaged.”

Lindley L. J. at page 341 of the report cited with approval the law as laid down by Lord Blackburn in Dalton v. Angus 6 App. Cas. 740, 829 as follows:

“Ever since Quarman v. Burnett it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor.”

In the case on appeal, the maintenance of the Road in question is a duty put by Statute on the Ministry of Works. In the efficient carrying out of its duty, the authority is empowered to dig for gravel within a certain defined limit on one side of the road.

The relevant authority has delegated the duty to the defendant. There is nothing to prevent it from so doing, but in so doing it does not absolve itself from liability for any injury done to a third party. The important point here, however, is that once the Ministry of Works is able to delegate its authority, that person who enters the land in exercise of the powers conferred on the Ministry of Works is not a trespasser. Rigby L. J. said in the case to which reference has already been made at page 351 that:

“Apart from the question of remoteness, the main defence set up on the appeal was, that the defendant Thornton was an independent contractor, for whose negligence the district council were not liable.

I will assume in the first instance that he was an independent contractor. His interference with the street would have been illegal, but for the fact that he was acting as the agent and delegate of the district council, who, having power to do the work under sect. 150 of the Public Health Act, 1875, and other statutory provisions, employed Thornton to do it for them, so that he acted by virtue of their authority, and their authority only.”

This action on appeal based as it is on trespass must therefore fail. We wish to repeat, however, that we are not here concerned with the question of whether the plaintiffs are or are not entitled to compensation for the gravel dug on their land, and if so from whom.

The appeal is dismissed with costs assessed at twenty-nine guineas in favour of the respondent.

Other Citation: (1964) LCN/1137(SC)