Ibadan City Council Vs J. O. Odukale (1972)
LawGlobal-Hub Lead Judgment Report
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.
Next day the plaintiff, a transporter since 1956 and the owner and operator of eight passenger buses which had been operating in the city ofIbadan prior to the making of the Bye-laws applied and obtained from the secretary of the defendant Council the prescribed application forms for permit. He duly completed them; but when he submitted them to the secretary for the issue of permits the latter declined to accept them. The secretary explained to him that he could not deal with them himself without the prior approval of Chief Akinloye chairman of the defendant Council who, as already stated, was also the chairman of the transport committee and that the prevailing practice was that all applications for permits must first be submitted directly to the chairman of the transport committee who, if he approved, would initial them, thereby authorising the issue of such permits to applicants.
Acting on the advice of the secretary, the plaintiff promptly delivered his application forms duly completed to Chief Akinloye as chairman of the defendant Council who after accepting the same, deliberately refused to issue the plaintiff with the requisite permits for his buses on the ground that the plaintiff and his employees were members of the United People Grand Alliance-a political party which was in opposition to the Nigerian National Democratic Party-another political party of which Chief Akinloye was a member and which was the party at the material time in control of the Government of Western Nigeria and the defendant Council. Chief Akinloye told the plaintiff that, unless he declared for the Nigerian National Democratic Party and he and his employees supported the Government Party, he would not be issued with any permits for the operation of his eight buses. The plaintiff remained unyielding. He refused to declare support for the Government Party. So too was Chief Akinloye. He remained adamant and refused to issue the plaintiff with any permit despite the intervention of other persons on behalf of the plaintiff. On the other hand, permits were issued to those who declared for the Nigerian National Democratic Party and supported the Government of the day.
The result of this was that for that year the plaintiff could not operate his eight passenger buses in the city of Ibadan. The buses remained idle up to some time in 1966: and the plaintiff thereby sustained losses and damage and his 56 employees were thrown out of job. Then in January 1966 there was a military coup d’etat the consequences of which were the formation of a military government, the dissolution of the defendant Council and the appointment of a sole Administrator who took charge of the administration of the affairs of the defendant Council. The plaintiff thereupon petitioned the new military government about his plight under the dissolved Council. As a result, the plaintiff and all those like him who were refused permits by the dissolved Council, were immediately issued with permits which enabled them to resume their transport business in the city of Ibadan.
The plaintiff was issued with permits in July 1966, and, on or about 21st December, 1966, he instituted proceedings, the subject matter of this appeal, against the defendant Council and another, the defendant Council being therein shown as the second defendant, claiming:-
“The sum of 15,000pounds being special and general damages suffered when the defendant continuously and wrongly refused the plaintiff permit to operate bus transport within Ibadan City between June 1964 and June 1966 (both months inclusive); or in the alternative, being special and general damages suffered as a result of the defendants non-feasance of their statutory duties of issuing bus permits under the Ibadan City Council (Control of Traffic) Bye-laws 1964 made by virtue of section 11 subsection 1 (a) of the Road Traffic Law 1959 (cap. 113).”
Pleadings having been ordered and duly filed and delivered, the case was heard by Delumo J. who found and entered judgment for the plaintiff in the sum of 8,000pounds as special damages for loss of earnings at the rate of a340 per month for each of the eight buses for a period of 25 months. The plaintiff was also awarded 60 guineas costs. In the course of his judgment the learned trial judge in determining liability said, inter alia:
“I believe the evidence of the 5th and 6th pl.ws. and indeed the evidence of the plaintiff and his witnesses. Without permits, the plaintiff could not operate his buses during the material period without contravening the provisions of section 6(1) of the Ibadan City Council (Control of Traffic) Bye-laws 1964 punishable under section 9 of the same Law.
I am satisfied on the evidence that the continuous refusal of the 2nd defendant to grant permits to the plaintiff between 1964 and 1966 was wrongful. ”
The claim against the 1st defendant was, however, dismissed for the reasons therein stated by the court.
On appeal to the Western State Court of Appeal by the defendant Council the issues contested were the same as those contested before us in this Court. It is of interest to note that in his reply to the contentions of learned counsel for the defendant, the learned counsel for the plaintiff submitted, among other things, that “the basis of the action” by the plaintiff against the defendant “is non-feasance on the part of the secretary in refusing to accept the fee of 25ponds”; that “the plaintiff’s cause of action is one of non-feasance of duty which the Council committee assumed under Bye-law 6”; that if the action had been in mis-feasance the point of ultra vires raised by the appellant might have been arguable. Thus the plaintiff all the time was emphatic that his claim to be entitled to damages is based principally on non-feasance of the statutory duty imposed on the defendant Council.
In a reserved judgment, the Western State Court of Appeal held that the plaintiff was refused permits for the operation of his buses because he was not a member of the Nigerian National Democratic Party; that Chief Akinloye was the alter ego of the transport committee and of the defendant Council for the purpose of the issue of permits under the Bye-laws; that Chief Akinloye as the chief functionary of the transport committee was the directing mind and will of both the committee and the Council; and that for those reasons the defendant Council was liable for the acts or omissions of Chief Akinloye; and finally, that the learned trial judge was right in finding for the plaintiff as a proper cause of action was disclosed by the writ of summons. As already stated the defendant Council’s appeal was dismissed with 60 guineas costs, the award of 8,000ponds as special damages for a period of 25 months to the plaintiff being thereby affirmed. The cross-appeal by the plaintiff on the damages which were disallowed by the learned trial judge was also dismissed with 20 guineas costs to the defendant Council.
This appeal as hereinbefore stated is against that judgment. There was also filed an application by the plaintiff of his intention to contend at the hearing of the appeal that the decision of the courts below be affirmed on some other grounds, the particulars of which were set out in the said application. For the reasons which will appear in this judgment it will not be necessary to consider this application.
For the defendant Council, seven grounds of appeal were filed and argued. The first three grounds of appeal which were argued together raised in effect, as already indicated above, the question as to whether or not on the facts and circumstances of the present case a Local Government Council, that is, the defendant Council, is answerable for the acts or defaults of its officials. These grounds are in substance in the following terms:-
“(1) The learned Judges of Appeal misdirected themselves in law in holding as follows:-
The committee headed by Chief Akinloye which no doubt exercised the act of issuing permit by granting the permit only to members of N.N.D.P. obviously refused the issue of the permit for the same reason that the applicant is not a member of that party … The position in which the Council thus placed Chief Akinloye in this case no doubt is one which exceeds the status of mere servant or an employee to whom the provisions of sections 99-107 of the Local Government Law (Cap. 68) would apply. That committee is the alter ego of the Council in so far as the issue of permit under the Bye-laws is concerned and Chief Akinloye occupies the post of the chief functionary of the committee. In fact he was the directing mind and will of the committee a fortiori of the Council, in so far as the act of granting permits to bus operators is concerned. In our view, a master who puts a servant in a position in which that servant becomes the sole judge of what to do in performing certain acts takes responsibility for such wrong as may be committed in performing those acts.”
(Particulars of misdirection complained of which we consider unnecessary to reproduce were clearly set out following upon this ground).
“(2) The learned judges erred in law in failing to observe that one of the real issues before them on the appeal was whether, in the absence of evidence that there was a resolution or decision of the Council that permits be issued only to members or supporters of the N.N.D.P., a court of law ought to presume that any agent or servant of the Council who refuses to grant permit to the plaintiff because of his political alignment, must have done so pursuant to the implied authority of the Council.
(3) The learned judges erred in law in thinking that the Poulton case was modified by subsequent decisions.”
In his submissions on these grounds, learned counsel for the defendant contended that the charge of refusal to grant permit to the plaintiff was on the pleadings and on the evidence made directly against the defendant Council and not on the basis of vicarious liability for the acts of Chief Akinloye as chairman of the defendant Council and of the Transport Committee, as was held by the Western State Court of Appeal; that the learned trial judge in the High Court did not have any opportunity of ever giving consideration to the application for permit, let alone to grant such permit; that in any case, the act of refusal to grant permits to the plaintiff because he was not a member of a political party was ultra vires the Council; that on the principle of law as stated in Halsbury’s Laws of England Vol. 9 3rd Ed. paragraph 179 at page 88 the defendant Council could only be answerable for the acts or defaults of Chief Akinloye if the latter acted within the scope of the defendant Council’s authority either express or implied; that the only effective means of proving that Chief Akinloye had the authority of the defendant Council for his action was by the production and exhibition in the proceedings at the trial of the case of a resolution to that effect, and that no such resolution was in fact exhibited; and that again, on the principle of the maxim delegatus non potest delegare, since the power to issue permits was delegated by the defendant Council to the transport committee the latter was not competent to delegate such function to Chief Akinloye, and that any such delegation was illegal and void, in which case, the defendant Council could not be answerable for such illegality.
In support of his contention that the charge of refusal to grant permits to the plaintiff was made directly against the defendant Council and not on the basis of vicarious liability, learned counsel referred to paragraphs 10 and 25(b) of the amended statement of claim which read as follows:-
“10. Notwithstanding the immediately preceding paragraph, the permits of the plaintiff’s buses were arbitrarily and wrongfully withheld and subsequent issue refused.
- (b) That it is not the Ibadan City Council (Control of Traffic) Bye-laws, 1964 itself that inflicted damages on the plaintiff, but the continuous refusal of the defendants to perform their duties thereunder lawfully, as expressed in paragraph 5 above and which refusal was persisted in until July 1966.”
In respect of the submission that as the act of refusal to grant permit to the plaintiff merely because he was a member of an opposing party being ultra vires the Council, such refusal could not be held against the defendant, learned counsel placed reliance, correctly in our view, on the case of Poulton v. London and South Western Railway Co. Ltd. (1867) L.R. 2 Q.B. 534 and in particular on the statement of the law by Lush J. in Campbell v. Paddington Corporation [1911] 1 K.B.869 when he said lt pages 877 to 878:-
“The second contention was that the act of the defendant was illegal and that therefore the only person to be sued in respect of it are those individuals who authorised it. In support of this contention the case of Poulton v. London and South Western Railway Co. was cited. In that case a Station Master, being a servant of the defendants, without any instructions or authority from the defendants gave the plaintiff into custody for refusing to pay for the carriage of his horse. The question was whether the act of the Station Master in giving the plaintiff into custody was within the scope of his employment. It was held that, as the defendants themselves could not lawfully have done the act, it could not be within the scope of their servant’s employment to do it.”
We do not, however, agree with the learned counsel that the Western State Court of Appeal was of the view that because Poulton v. London and South Western Railway Co. (supra) was modified by subsequent decisions it was no longer good law. Contrary to that contention, it is our view that the Western State Court of Appeal was at pains to show that in spite of subsequent decisions, and, in particular, the attempt by Blackburn J. to limit and distinguish the decision in Poulton’s case from Moore v. Metropolitan Railway Co. (1872) L.R. 8 Q.B. 36 and Goff v. Great Northern Railway Co. 30 L.J. Q.B. 148, the decision was still good law which is still being followed by the courts. In this connection the Western State Court of Appeal said:-
“There is no gainsaying it that despite Blackburn J.’s clear explanation in the Moore case and the limitation placed thereon by that judge the courts had followed on several occasions the Poulton case as an authority for holding the master not liable on the grounds that he would have had no power to commit the particular tort alleged. ”
And further:-
“Notwithstanding the decisions in the Poulton case and its follow up in these other cases, one thing is clear to us that it is the facts of each case that will determine whether the servant had implied authority or not. For to use the words of Lord McMillan in Northumbrian Shipping Co. v. McCullum [1932] All E.R. [Reprint] 138 at p. 141:-
‘The circumstances and incidents of employment are almost of infinite variety. ”
On the basis of the above principles the Western State Court of Appeal proceeded to examine the evidence in order to ascertain whether there was any limitation placed on the power or authority of Chief Akinloye bearing in mind that he was chairman both of the defendant Council and of the transport committee and came to the conclusion, we think rightly, that the defendant Council in appointing the transport committee did not lay down any procedure to be adopted by it in approving the issue of permits to bus operators. No criteria were laid down by the Council for the guidance of the committee. Everything was left to the unfettered discretion of the committee. It held also that the defendant Council attached considerable importance to the committee, hence it placed its own chairman as the chairman of it. We think the Western State Court of Appeal was right to hold that the position in which the defendant Council had placed Chief Akinloye was one which exceeded the status of a mere servant or an employee, to whom the provisions of sections 99-107 of the Local Government Law (Cap. 68) would apply; for Chief Akinloye certainly occupied the position of the chief functionary of the committee. He was on the evidence the directing mind and will of the committee and a fortiori of the Council for the purposes of the grant of permits to bus operators.
As learned counsel for the plaintiff rightly contended, the onus was upon the defendant Council to show that what was done by chief Akinloye had not its approval, and to establish by evidence the restrictions which were imposed on the exercise of power by Chief Akinloye. Unlike the situation in Jarmakani Transport Limited v. Madam Wulemotu Abeke [1963] 1 All N.L.R. 180 in which the appellants therein successfully showed by evidence that by carrying passengers contrary to their instructions their driver acted outside the scope of his employment, the defendant Council in the present case made no attempt whatsoever to establish the limits, if any, which were imposed upon the exercise of power by Chief Akinloye as chairman of the transport committee; nor was there any evidence as to the specific policy of the Council in respect to the issue or grant of permits for the operation of omnibuses in the city of Ibadan. Indeed, the line of defence was not that in refusing the plaintiff permit, Chief Akinloye was on a frolic of his own and therefore acted without the authority of the defendant Council. Rather than exculpate or exonerate itself from any excesses or abuse of power by Chief Akinloye, the defendant Council was engaged in a defence of justification.
As was observed by the learned trial judge in his judgment, no attempt was made by the defendant Council even to establish by evidence the defence which was pleaded in paragraph 18 of the statement of defence to the effect that:-
“The defendant did not consider the applications of the plaintiff because the Ibadan Transport Bus Owners Association of which the plaintiff is a member by their letter dated 22nd May, 1964, refused to accept and/or comply with the conditions stipulated by the Council for the grant of permit.”
In the absence of the letter of 22nd May, 1964, which was never produced during the trial even though specifically pleaded, and of any evidence to the contrary would it be unreasonable to infer that the conditions stipulated for the grant of permit by the Council included becoming a member of or declaring for the Nigerian National Democratic Party which was the political party in control of the Council We think not.
That the defendant Council attached considerable importance to the transport committee and the grant of permits to applicants cannot be denied and is beyond argument. That must account, as was held by the Western State Court of Appeal, for the defendant Council placing its own chairman who may be regarded as the chief exponent of its policy in full charge of it; and, on the evidence, it is equally clear that the chairman, thus entrusted, administered the affairs of the committee with the full support of the defendant Council. His activities in this respect were never denounced by the defendant Council. On the facts of this case matters of this kind cannot be treated as a purely abstract proposition. We think here that the words of Lord Dunedin in Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. [1915] A.C. 705 in connection with the application of section 502 of the Merchant Shipping Act are pertinent. He said at p. 715 of the report:
“The real question therefore turns upon what is to be the application of the words there used to a metaphysical conception like an incorporated company which cannot act directly themselves …. I do not think it arises in this case, and I certainly incline to the opinion that it would be found always to depend upon the particular facts of the case. If I was bound to decide affirmatively in this case, I should be inclined to think that there was enough known about Lennards to show that, to use the appellant’s learned counsel’s own phrase ‘he was the alter ego of the company’. He was a director of the company. I can quite conceive that a company may by entrusting its business to one director be as truly represented by that one director as in ordinary cases it is represented by the whole board. I am quite sure that you cannot at least put as a general proposition in law that it is true that nothing will ever be the actual fault or privity of an incorporated company unless it is the actual fault of the whole board of directors. But, my Lords, I think the true criterion of the case is that which was found and applied by Hamilton L.J. that the parties who plead this 2nd section must bring themselves within its terms and therefore the question is, have the company freed themselves by showing that this arose without their actual fault or privity I think they have not. … Anyway, they have not discharged the onus which was upon them.”
It is abundantly clear that on the facts of this case the defendant Council failed to discharge the onus upon it of showing that what was done by Chief Akinloye was without its knowledge, authority or approval and that it was not privy thereto.
Then there were the averments contained in paragraphs 6 and 7 of the amended statement of claim which are as set out hereunder:-
“6. At a certain time, Mr A.M. Akinloye was the Chairman of the Transport Committee of the 2nd defendant Council.
- The Committee referred to in paragraph 6 above is an arm of the 2nd defendants charged with the responsibility of controlling and regulating transport generally in Ibadan City.”
These averments were admitted in paragraphs 4 and 5 of the statement of defence as follows:
“4. The 2nd defendant admits paragraph 6 of the plaintiff’s statement of claim.
- The 2nd defendant admits paragraph 7 of the plaintiff’s statement of claim.”
In view of these admissions and other facts established by evidence accepted by the learned trial judge, we consider that the criticisms of the Western State Court of Appeal on this aspect of the case in describing Chief Akinloye as the alter ego of the committee and of the Council were unjustified. We are satisfied on a critical examination of the evidence and hold that the Western State Court of Appeal came to a right decision when it took the view that the defendant Council was answerable for the acts or defaults of its official, Chief Akinloye, and that the latter was the directing mind and will of both the committee and the defendant Council. The first three grounds of appeal therefore fail.
The most serious problem posed by this appeal is to be found in the second question in grounds 4 and 7, the substance of which may be set out thus:-
Accepting all the facts pleaded and proved by the plaintiff in this case, was an action sounding in damages the appropriate relief open to the plaintiff Or as was consistently and repeatedly asserted and argued by learned counsel for the plaintiff that the basis of the plaintiff’s case was non-feasance, is the defendant as a corporation aggregate, a local government council, liable in damages in an action the foundation of which is non-feasance as distinct from misfeasance
In dealing with this aspect of the case the learned trial judge in the High Court in a passage which may aptly be described as a classic in brevity in an otherwise long judgment said:-
“I am satisfied on the evidence that the continuous refusal of the 2nd defendant to grant permits to the plaintiff between 1964 and 1966 was wrongful.”
This finding is vague and unsatisfactory in at least two respects. In the first place, the evidence before the court was that under the Bye-laws permits were granted annually to applicants. To obtain a permit there must be an application on a prescribed form accompained by the payment of the prescribed fee. In other words, in each year there must be a fresh application and the payment of the prescribed fee before a permit could be issued to an applicant. It follows that until an application for the grant of permit was made to the Council and refused there could not be a wrongful act, and each application made and refused would constitute a separate and distinct wrongful act which may entitle the plaintiff to some relief. On the evidence the only application for the grant of permit made by the plaintiff was in 1964, which was refused. There is no evidence that thereafter fresh applications were made and refused before the coup d’etat. It is therefore not in accord with the evidence before the court for the learned trial judge to have described the single refusal made in 1964 as “the continuous refusal of the second defendant to grant permits to the plaintiff between 1964 and 1966”. In our opinion, the learned trial judge was in error to have taken into consideration the period 1965 to 1966 in the award of damages to the plaintiff; and the Court of Appeal was also wrong to have confirmed the quantum of damages awarded in those circumstances.
In the second place, it is not all wrongful acts which are actionable torts, and the present action is based on tort. The learned trial judge, with respect, failed to identify the nature of the wrong which the act of refusal to grant the plaintiff permit constituted and the cause of action disclosed by the pleadings and the evidence in the case, and whether the same could constitute a proper foundation for an action sounding in damages. It seems to us that a mere refusal to grant the plaintiff permit might well fall within the category of wrongs classified by the learned authors of Winfield on Tort as “Doubtful Wrongs”, it being an abuse of statutory power over a person’s means of livelihood, which, if even it is a wrong, may still be insufficient to support a claim for damages in tort. (See Winfield on Tort, 8th Ed. p. 516).
The view expressed and the conclusion reached by the Western State Court of Appeal on this aspect of the case do not appear to improve matters. The Western State Court of Appeal’s decision was that a proper cause of action apparently entitling the plaintiff to damages was disclosed. To put it in the language of the court, it said:-
“From this one can take it further and after examination of the writ of summons one would conclude that a cause of action has been disclosed against the defendant/Council.”
The decision of the Western State Court of Appeal was undoubtedly based on the authority of the judgment of the Privy Council in Asokam Kumar David v. M. A. M. Abdul Cader [1963] 3 All E.R. 579. The Western State Court of Appeal relied heavily on a passage of that judgment which was delivered by Viscount Radcliffe. Having examined the judgment of the Privy Council in that case, we are satisfied that the Western State Court of Appeal, with respect, was in error to have based its judgment on it. For, it failed to appreciate two fundamental issues dealt with in that judgment, the first of which being that the claim of the plaintiff in that case was based on delict under Roman Dutch Law which does not operate in this country. The Privy Council itself took the trouble to point out that the Supreme Court of Ceylon was wrong in law to have based its decision on English law, that is, on the decision in Davis v. Bromley Corporation [1908] 1 K.B. 170, for although the facts of both cases were similar, the laws applicable were different.
Secondly, the Western State Court of Appeal failed to realise that David v. Cader (supra) was dismissed on a preliminary objection raised in limine on the application that the plaint did not disclose a cause of action. It was the view of the Privy Council that the dismissal was wrong at that stage of the proceedings as there were triable issues raised on the pleadings. The case was therefore sent back for a proper trial of the issues in controversy between the parties. There is no information available to us as to how the case finally ended.
The Western State Court of Appeal, with respect, appeared also to have overlooked the insistent assertion on the part of learned counsel for the plaintiff that his claim in the case on appeal was based on nonfeasance. In the writ of summons the damages claimed were expressed to have been suffered as a result of the defendant Council’s non-feasance of its statutory duties of issuing city bus permits under the Ibadan City Council (Control of Traffic) Bye-laws, 1964. Reference has already been made to the averment contained in paragraph 25(b) of the statement of claim.
It is a well-known fact that judicial redress can more readily be obtained for wrongful acts than for wrongful omissions on the part of a public authority like a local government council. The courts have always regarded with disfavour a claim against a local authority on the ground of non-feasance.
In Wilson v. Kingston-Upon-Thames Corporation [1949] 1 All E.R. 679 a hole in an asphalt road way was temporarily repaired by the Highway Authority by filling it with tarmacadam. The road again became in need of repair and the plaintiff, as a cyclist riding over the hole, was thrown from his cycle and injured. He brought an action for damages against the defendants, the Highway Authority, on the ground that they had carried out repairs to that part of the highway so negligently that it had again become out of repair by the time of the accident. Morris J. held that the lack of repairs of the highway arose from non-feasance and not from mis-feasance in repairing the road negligently, and, therefore that the defendants were not liable. That decision was affirmed on appeal by the Court of Appeal.
In Burton v. West Suffolk County Council [1960] 2 W.L.R. 745, it was held, inter alia, that even where a highway authority had carried out drainage work, failure to provide adequate drainage by not doing sufficient work was an act of non-feasance for which the highway authority was not liable. (See also Sheppard v. Glossop Corporation [1921] 3 K.B. 132).
It may therefore be asked: does it mean that in a case such as the one under review a plaintiff is altogether without a remedy The answer to that question must be in the negative. We think that it would be foolhardy to hold that the plaintiff who, on the evidence in the case on appeal, had suffered considerable injury to his business would have no remedy in law. The problem in this case is the form which such a remedy should take. We think the courts have from time to time declared appropriate remedies which are available. For this purpose, we would content ourselves by referring to only two decided cases which we consider relevant and pertinent on the point.
In Davis v. Bromley Corporation (supra) it was held that an action would lie against a local authority for maliciously refusing to approve building or drainage plans deposited with it; and if a local authority, in rejecting the plans, has been actuated by improper motives, and has merely pretended to exercise its powers without addressing its mind to the question before it, the remedy of the person aggrieved is by a mandamus to the local authority to hear and determine his application.
In dealing with the question as to the remedy available to the plaintiff in that action, Vaughan Williams L.J. in his judgment said at p. 173:-
“if it is suggested that the result of our decision, affirming that of Lawrence J., would leave the plaintiff without a remedy, the answer is that, although an action for damages will not lie, there is nevertheless a remedy where the court can see from the facts that, although the local authority has made a pretence of exercising its power, it has, neverthless, in truth and in fact, never addressed its mind to the question before it; in such a case a mandamus to hear and determine the matter might be obtained in the King’s Bench Division.”
(See also Glossop v. Heston and Isleworth Local Board (1879) 12 Ch. D. 102).
In more recent times there is the case of Nagle v. Feilden and others [1966] 2 Q.B. 633. There a woman racehorse owner and trainer was refused a licence on the ground, as she alleged in her statement of claim, of her sex by the defendants therein as representatives of a Jockey Club whereby she suffered loss and damage. She brought an action against them claiming a declaration, injunction and damages. Her action was dismissed on the application of the defendants on the ground that it disclosed no cause of action. She appealed finally to the Court of Appeal. In allowing the appeal, Lord Denning M.R. said in part at p. 644:-
“The common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the goverance of it. If they make a rule which enables them to reject his application arbitrarily or capriciously, not reasonably, that rule is bad. It is against public policy. The court will not give effect to it.”
And further at p. 647:-
“I do not think that this statement of claim should be struck out.
If the facts which the plaintiff alleges are proved, she may have a good case to ask for a declaration and injunction. I would allow the appeal accordingly. ”
We have gone into the trouble of referring to and dealing with these cases in order to show that in all the circumstances of this case on appeal, having regard to the endorsement on the writ of summons, the averments in the statement of claim and the evidence which was accepted by the learned trial judge, the plaintiff’s action in the form in which it was constituted was not competent. The defendant Council cannot be made liable in damages for non-feasance which the learned counsel for the plaintiff repeatedly insisted was the basis of the claim for damages. We are satisfied and hold (albeit reluctantly as our sympathy naturally goes to the plaintiff), that, (although the plaintiff might have been entitled to a declaration that, having fulfilled all requirements, he was entitled to permits for his vehicles or that a mandamus should issue against the defendant Council to compel it to grant him permits), an action, such as the present sounding, as it is, in damages is not the appropriate relief available to the plaintiff. An action for damages does not lie in the circumstances of this case.
In the result this appeal succeeds. It is allowed. The judgment and orders of the Ibadan High Court awarding the plaintiff ‘a38,000 damages with 200 guineas costs and of the Western State Court of Appeal dismissing the defendant Council’s appeal and affirming the said judgment with 60 guineas costs against the defendant Council are hereby set aside.
We order that the plaintiff’s claim in the High Court be and it is hereby dismissed with 200 guineas costs to the defendant Council. The defendant Council is also awarded costs in the Western State Court of Appeal and in this Court assessed and fixed at 100 guineas and 74 guineas respectively.
Other Citation: (1972) LCN/1397(SC)
