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DANIEL ADENUGA
V.
LAGOS TOWN COUNCIL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
30TH DAY OF NOVEMBER, 1950
2PLR/1950/15 (WACA)
OTHER CITATION(S)
2PLR/1950/15 (WACA)
(1950) XIII WACA PP. 125 – 127
LEX (1950) – XIII WACA 125 – 127
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BEFORE THEIR LORDSHIPS:
VERITY, C.J. (NIGERIA)
LEWEY, J.A.
DE COMARMOND, S.P.J.
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BETWEEN:
DANIEL ADENUGA – Appellant
AND
LAGOS TOWN COUNCIL – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3304/50
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REPRESENTATION
Kayode — for Appellant
David — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ENVIRONMENTAL LAW — TOWN PLANNING:- Action for an injunction restraining the a Town Council from demolishing the whole of a building alleged to have been erected in contravention of the Township Bye-Laws — Proper treatment
ADMINISTRATIVE AND GOVERNMENT LAW:- Claim for injunction to restrain Town Council from demolishing a building — Power to demolish taken under bye-laws by notice — Further notifications substituting different terms — Where in pleadings counsel relied on second notice — Whether rights under original notice lost
ADMINISTRATIVE AND GOVERNMENT LAW:- Powers vested in the Town Council under the Ordinance and under the bye-law — Nature and justification for same — How properly exercised — Duty of the Courts to interpret the provisions of the Ordinance and of the bye-laws strictly in order that the interests of the public should be duly protected
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CASE SUMMARY
The appellant was the plaintiff.
In the Court below the appellant lost his action for an injunction restraining the Lagos Town Council from demolishing the whole of a building erected in contravention of the Township Bye-Laws.
The Council gave notice to the appellant dated the 15th March, 1948, to remove a certain building, and if he failed to do so within twenty-one days the demolition would be carried out by the Council. Subsequently the appellant was prosecuted and found guilty of a breach of the Township Bye-Laws. Thereafter, on the 27th July, the Council sent a further notification to the appellant to the effect that, subject to his complying with the terms of this second communication, the Council would not exercise their power of removing the whole building.
Counsel for the appellant argued on this appeal that the second notification of the 27th July was a notice within the appropriate bye-law and that it would be the sole authority for the demolition of the building.
The respondents in their pleadings had relied on the notice of the 27th July, but their Counsel argued on this appeal that they were still entitled to act under the notice of the 15th March.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. The respondents were bound by their pleadings and could not set up an entirely different case at the trial court or on this appeal.
2. The powers reserved to the Council by the second notification of the 27th July were not sufficiently wide to authorise them to demolish the whole building. An injunction restraining the respondents from demolishing the whole building accordingly granted.
3. The powers vested in the Town Council under the Ordinance and under the bye-law are very proper powers, and are conferred upon them in the interests of the community as a whole, and for that matter, of the individual householder; but at the same time, they are very wide and very drastic powers and it is essential that they should comply strictly with the terms upon which they are allowed by the legislature to exercise them, and the Courts should interpret the provisions of the Ordinance and of the bye-laws strictly in order that the interests of the public should be duly protected.
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MAIN JUDGMENT
The following Judgement was delivered:
VERITY, C.J.
In this case the plaintiff sought an injunction to restrain the Lagos Town Council from demolishing a certain building which had been erected by him in contravention of the Township Bye-Law. The Town Council had given notice to the plaintiff dated 15th March, 1948, to remove this building within twenty-one days, and by that notice there was further notification that: If he failed to do so, the demolition would be carried out by the Town Council at his expense.
Subsequent to that date the plaintiff was prosecuted and fined for a breach of the Township Bye-Laws. On the 27th July a further notification was sent to the plaintiff to the effect that, subject to his complying with the terms of this second communication, the Town Council would not exercise its powers under the Township Ordinance to require the removal of the whole building. The terms were that the plaintiff should make certain alterations in the building which he had erected, and the communication ended by saying that if the parts of the building indicated as having to be demolished were not removed within a month, the Town Engineer, who wrote this letter, would be authorised to remove the whole of the building.
Bye-Law 14 of the Township Bye-Laws applicable in this case provides that:-
“If any building is commenced or erected in contravention of the preceding bye-law, the owner, on his being given notice in writing to do so by the Council, shall-
“(a) pull down the building, or
“(b) carry out such alterations to the building as may be necessary to make it comply with the bye-laws.
“whichever may be required by the notice … In the event of the owner failing to comply with the notice within the period specified, the Engineer may carry out the work and the expense of his so doing shall be a debt due by the owner to the Council.”
It is submitted on behalf of the plaintiff, who lost his case in the Court below, that this second communication, to which I have referred, is a notice within the meaning of Bye-Law 14, and that that would be the sole authority for the demolition of the building by the Town Council.
On behalf of the Town Council it is submitted that the notice under which the Town Engineer stated he would proceed to demolish the building in certain circumstances, was that dated the 15th March. It was submitted on behalf of the plaintiff that the communication of the 27th July is in substitution for that of the 15th March, that it is upon the second communication only that the Lagos Town Council is entitled to rely. It is clear from paragraphs 6 and 7 of the defence that the respondents were relying upon the document of the 27th July as the authority for the act of demolition and were not then relying upon the document of the 15th March.
As has been said on many occasions in this Court, a party in a civil suit is bound by his pleadings. He cannot set up as his case one thing in his pleadings, and in this Court rely upon something entirely different. It is clear in this case, that he pleaded as his authority, contravention of the notice of the 27th July, and he cannot now say that the authority is the plaintiff’s failure to comply with the notice of the 15th March. We have, therefore, in my view, to consider whether or not the notice of the 27th July is sufficient to justify the acts which the Lagos Town Council now contemplate, and from which it is asked that they should be restrained.
It is clear, in my view, that all the appellant was required to do in this case was to make alterations to the building which he had erected in contravention of the bye-laws. Bye-law 14 authorises the Town Engineer, in the event of non-compliance with such notice, to carry out the work, that is to say, the work which the householder is called upon to do, and which he has failed to do. The only powers, therefore, which the Town Council had in pursuance of their notice of the 27th July, was themselves to carry out the alterations required by them. It would not, therefore, be lawful for them to enter upon these premises and proceed to demolish the whole building in so far as this notice of the 27th July is concerned. I would not be prepared to say that under that notice they are necessarily authorised to enter and make the necessary alterations themselves, but I think that the plaintiff in this action was entitled to an injunction restraining the Town Council from entering and demolishing the whole building, and I consider, therefore, that the appeal should be allowed, and that an injunction should issue restraining the defendants from demolishing this building in pursuance of either the notice of the 27th July, 1948, or the notice of the 15th March, 1948.
I would just wish to add that the powers vested in the Town Council under the Ordinance and under the bye-law are very proper powers, and are conferred upon them in the interests of the community as a whole, and for that matter, of the individual householder; but at the same time, they are very wide and very drastic powers and it is essential that they should comply strictly with the terms upon which they are allowed by the legislature to exercise them, and the Courts should interpret the provisions of the Ordinance and of the bye-laws strictly in order that the interests of the public should be duly protected.
The order is, therefore, that the appeal will be allowed and an injunction issued restraining the defendants from demolishing this building in pursuance of either the notice of the 15th March, 1948, or the notice of the 27th July, 1948.
With regard to the question of the costs of this appeal, my own view is that as the plaintiff by his initial contravention of the bye-law, and by his subsequent refusal to make any alterations, brought the whole litigation upon himself, there should be no order for costs.
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ARTHUR LEWEY, J.A.
I agree.
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J. H. M. DE COMARMOND, S.P.J.
I agree.
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Appeal allowed.