Ibadan City Council Vs J. O. Odukale (1972)

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UDO UDOMA, J.S.C.

This appeal has been brought by the defendant – the Ibadan City Council- in the Ibadan High Court Suit No. 1/218/66 in which judgment was given in favour of the plaintiff herein respondent, in his claim for damages against the defendant Council. An appeal against the judgment was dismissed by the Western State Court of Appeal, which affirmed the judgment of the Ibadan High Court.

This appeal is against the judgment of the Western State Court of Appeal and raises two very substantial and fundamental questions of law, namely, as to whether or not on the facts and circumstances of this case on appeal a Local Government Council:-

(a) is answerable for the acts or defaults of its officials; and

(b) is liable for non-feasance;

or, more explicitly and precisely, as to whether or not an action sounding in damages was the appropriate relief available to the plaintiff in the

circumstances of this case.

The case giving rise to this appeal arose in this way: In 1964 in exercise of the powers vested in it by paragraph (a) of subsection 1 of section 11 of the Road Traffic Law (cap. 113) Western Nigeria, the defendant Council-that is, the Ibadan City Council, promulgated “The Ibadan City Council (Control of Traffic) Bye-laws, 1964” which was published in the gazette as W.N.L.N. 117 of 1964. For the purpose of this appeal the only relevant part of the Bye-laws which need be referred to are Bye-laws 6(1), (2), (3) and (5), the provisions of which are as follows:-

“6(1) No person shall operate or cause to be operated any stage or hackney carriage within the areas of jurisdiction of the Council save under and in accordance with a permit issued by the Council.

(2) The form of such permit and the fees payable thereunder shall be as specified in the Fourth and Fifth Schedules respectively.

(3) An application for a permit shall be as in the form set out in the Sixth Schedule hereto.

(5) A permit referred to in this bye-law shall be taken out on the 1st of January of each year or such later date as the vehicle shall first be operated as a hackney or stage carriage and such permit shall continue in force from the date of issue until the 31st day of December next following.”

By the terms of the provisions set out above, on coming into force of the Bye-laws, to operate any stage or hackney carriage within the area of the jurisdiction of the defendant Council, it became obligatory to obtain a permit from the defendant Council for which a fee of 25pounds was payable in the case of an omnibus, and such permit would only continue in force from the date of issue until 31st December of the year of issue; so that permits were obtained annually and would remain valid and in force till the end of the year of issue.

The Bye-laws came into force on 7th May, 1964. On 18th May, 1964 at the invitation of the defendant Council, by its letter of 16th May, 1964, exhibit A in the proceedings on appeal, the plaintiff together with other transport service operators attended a meeting of the defendant Council’s transport committee of which one Chief Akinloye, the chairman of the defendant Council, was chairman and one Chief Oyesina, the secretary of the defendant Council, was also the secretary. At the meeting the provisions of the new Bye-laws were explained and discussed. Instructions were then given that anyone wishing to run a passenger bus service business in the city of Ibadan must obtain permits at the prescribed fee of 25pounds per vehicle for the defendant Council.