Town Clerk Vs Mrs P.a. Clement (1963)

LawGlobal-Hub Lead Judgment Report

BRETT JSC

This is an appeal by the Town Clerk of the Lagos Town Council against the judgment of the High Court of Lagos awarding damages against him in respect of injuries caused to the plaintiff and her house through the negligence of one Christopher Asemota, who was employed by the Town Council as driver of a conservancy lorry.

In the Court below negligence was denied and an attempt was made to suggest that the damages claimed were inflated, but the main defence, and the only point argued in this Court. was that the Town Council ought to have been sued in its own name,and that the Town Clerk could not be sued in respect of a liability attaching to the Council itself.

The incident giving rise to the claim took place on the 3rd May, 1959, and the writ of summons was issued on the 27th July, 1959. The Defence. in which it wits pleaded that the action was not maintainable against the appellant, was filed on the I st August, 1960, and judgment was delivered on the 14th November, 1960.

The learned judge disposed summarily of the submission that the wrong party was before the Court, saying simply

‘The Lagos Town Council is before the Court in the person of the Town Clerk and I think that is adequate.’

With respect, 1 think the submission was one which required fuller consideration than that.It did not, of course, touch the merits of the case, and there are indications that the learned trial judge may have been of the opinion that an action against the Town Council would have been statute-barred by the time the point was first raised; this is a question on which we have heard no argument, and which it is unnecessary to decide, since Mr Jinadu, Deputy Town Clerk, who appeared for the appellant, said in this Court that he was only anxious to establish the point of law as to the proper person to sue, and that on behalf of the Town Council he would consent to an amendment of the writ and other proceedings so as to leave the judgment subsisting against the Town Council, if this Court was of the view that the Town Council ought to have been the party sued.

In my opinion the appellants submission on this point is well founded. Section 10 of the Lagos Local Government Act, as reprinted in 1959, incorporates the Council. and section 169 empowers it to prosecute or defend any legal proceedings. Section 170 provides that the Council may appear in any legal proceedings by the Town Clerk, and that the Town Clerk shall be at liberty to prosecute or defend any proceedings which the Council is authorized to prosecute or defend. There is at least one reported decision on the effect of a provision comparable to section 170 in an English Act: R. v. London Justices [1896]1 Q.B. 659; but this has not cited to us, and as it was not submitted that the effect of section 170 of the Lagos Local Government Act was to enable the Town Clerk to be sued in respect of a liability attaching to the Town Council, it is unnecessary to consider the exact scope of the section.

I would, for the reasons I have already stated, amend the writ and other proceedings so as to enter judgment against the Town Council.There remains the question of costs. The appellant raised the issue on which he has now succeeded in his Defence, but he also contested the claim on the merits in the Court below, and he seems to have given no indication that he would consent to an amendment of the kind to which he has now consented.

I do not think the costs properly incurred by the parties in the Court below were increased by the fact that the wrong defendant was sued, and I would leave the order as to costs in the High Court undisturbed, except that they will be payable by the Town Council and not by the Town Clerk. As regards costs in this Court, I am prepared to listen to further submissions on behalf of the appellant, but subject to anything he may have to say, I do not regard the legal point which he has established by this appeal as being of such importance that it could not have been reserved for a case where the Town Council had some sort of defence on the merits, and [ should be disposed to make no order as to costs.

I would make the following order:-The appeal by the Town Clerk of the Lagos Town Council against the judgment of the High Court of Lagos in suit No. LD/233/1959, is allowed, and by consent of the parties concerned the writ of summons and other proceedings in the High Court, including the judgment of the High Court, are amended by substituting the Lagos Town Council for the Town Clerk of the Lagos Town Council as first defendant in the suit. And no order is made as to the costs of this appeal.

Other Citation: (1963) LCN/1067(SC)