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[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
ACTION for Mandatory Injunction.
The plaintiff s claim is for:-
“a mandatory injunction against the defendant and/or its successors in office ordering the said defendant to approve a building plan L.E.D.B. No. M. 19733 L.C.C. No. 18931 in respect of a proposed building at Yaba, Lagos, Nigeria.”
Pleadings were ordered, filed and delivered. At the trial oral testimony was adduced and a number of documentary exhibits were admitted in evidence, on behalf or on the instance of both parties.
The facts are as follows. The plaintiff is the owner of Plot No. 103 in a proposed building estate at “Oyadiran Lay-out” Yaba. This lay-out consists of land divided into plots primarily for the erection of dwelling houses. A plan of the lay-out has been approved under an Interim Development Scheme by the Lagos Executive Development Board (hereinafter referred to as “The L.E.O.B.”). The L.E.D.B. is charged with the statutory duty of initiating and giving effect to town planning schemes in the City of Lagos. The plaintiff caused his architects to prepare building plans (Exhibits 4 to 14) in respect of Plot No. 103 in the said lay-out for the erection of a dwelling-house thereon. The plans were submitted to the L.E.D.B. for approval. The L.E.D.B. gave approval to the town planning aspects of the plans. The plans were then submitted to the Lagos City Council for approval. The Medical Officer of Health of the Council recommended the plans for approval in so far as sanitation, ventilation and other health requirements are concerned. The Deputy City Engineer, Mr Ogundiya, who testified at the trial, has refused and continues to refuse approval of the plans. It is clear from the evidence of Mr Ogundiya, which I accept on their point, that he has never approved the plans, and the question of cancellation of his approval contended by the plaintiff does not therefore arise. The Deputy City Engineer is empowered to discharge the functions of the City Engineer by virtue of section 73 of the Lagos Local Government Act (see Reprint published as L.N. 249 of 1959).
It is agreed that the plaintiff cannot lawfully erect a house on Plot No. 103 without the approval of the L.E.D.B. and the L.C.C. or their lawfully authorised officers. The plaintiff contends that the plans submitted by him comply with existing town planning and building laws and that the necessary approval for the building plans is being wrongfully withheld by the defendant acting through its Deputy City Engineer.
The defendant, in its statement of defence, contended that it acted lawfully in rejecting the plaintiffs plans and that it would rely on by-laws 6, 17 and 106 of the Lagos Local Government by-laws and, further, it denied that the plans submitted by the plaintiff comply with the Building Regulations contained in the said by-laws.
By-law 6 reads as follows:-
“No person shall erect any new building on any site which does not abut on an approved street or site of an approved street until the Council shall have approved the erection of a building on that site and the position within the site of the proposed building.”
By-law 17 provides:-
“In any case of doubt as between the by-laws and approved plans or building form, the by-laws shall in all cases prevail .
By-law 106 reads:-
“every person who shall intend to lay out a street shall give notice to the Council of his intention and shall deliver or send, or cause to be delivered or sent, to the Engineer at his office a plan and a section of such intended street, drawn to a scale of not less than one inch to every forty feet.”
In the first place, by-law 17 is clearly irrelevant. In the second place, by-law 106 deals with notice and submission of plans as regards new streets and has nothing to do with approval of building plans. The argument of learned Counsel for the defendant that compliance with by-law 106 is a condition precedent to the approval of building plans in respect of a proposed building abutting a proposed street is also untenable. There is nothing whatever in the by-laws to support this proposition. As regards by-law 6, the power of the Council to approve erection of a building on a particular site and the position within the site of the proposed building is not dependent on the prior approval of the street abutting the site. It is stated that no person shall erect any new building on any site which does not abut on an approved street or site of an approved street until the Council has given the necessary approval. In other words, the Council can give approval to erection even where the new building is to be erected on a site which does not abut on an approved street or site of an approved street.
The Council’s approval of the erection of a building, given under by-law 6, should not, however, be confused with the City Engineers power under section 80A and paragraph (8) of Part II of the Eighth Schedule to the Lagos Local Government Act, as amended by Act No. 18 of 1959, to approve all plans submitted in respect of new buildings. It is the exercise of this power vested in the City Engineer or Deputy Engineer, personally, and not in the Council, to approve building plans, which the plaintiff seeks the assistance of the Court to compel by a mandatory injunction.
The reasons Mr Ogundiya, the Deputy City Engineer, gave under cross-examination for not approving the building plans are:-
(1) that they are proposed for a site which is very low and which has not satisfied either L.E.D.B. or Lagos City Council requirements;
(2) that the levels shown on one of the plans (Exhibit 10) are incorrect; and
(3) that the ground floor of any building on the proposed site will always be flooded during the rainy season and that it will be difficult to drain both the waste water and the sewage system.
In the first place, the evidence of Mr Ogundiya himself and of Mr Smith, a senior Surveyor of the L.E.D.B., as regards levels, that is, heights above sea-level, was most unsatisfactory and must be rejected. Consequently, the evidence that the levels shown on Exhibit 10 (which, incidentally, are certified correct by a licensed surveyor) are incorrect must also be rejected. The evidence that the site is very low in relation to the surrounding area and that the ground floor of the proposed building will be flooded during the rainy season, making it difficult to drain both the waste water and the sewage system, is to a large extent, based on the evidence of levels which I have rejected. There is therefore no evidence of any reliable and independent eye witness as to the condition of the site immediately after a heavy downpour of rain Although during inspection of the site, on the application of both parties, it was observed- that some water had collected in the foundations already excavated for the new building, there is no evidence as to the time or extent of the rain. There was certainly nothing that could be described as “flooding” of the site or lay-out.
As regards compliance with L.E.D.B. requirements, Mr Oluwole, a civil engineer on the staff of the L.E.D.B., testified that when he was at the Town Planning Department of the L.E.D.B. the lay-out for the Oyadiran estate was presented for planning approval which- he gave after confirming that it satisfied town planning requirements. So Mr Ogundiya s testimony that the plans- did not satisfy L.E.D.B. requirements is, to say the least, inaccurate.
As regards compliance with Lagos City Council requirements, it is clear that the criteria or conditions to be satisfied before building plans are approved by the City Engineer are to be found in the Building Regulations. Mr Lawal, the Building Superintendent of the Lagos City Council, whose evidence I accept, testified on behalf of the plaintiff. He said that the plans (Exhibits 4 to 14) comply with the Building Regulations and that they should be approved by the City Engineer unless he can show cause why they should not be approved.
In my judgment, Mr Ogundiya, in deciding whether to approve the plans or not, took into consideration and relied on extraneous matters not provided for in the Building Regulations. One of his chief complaints was that the owner of the lay-out, Mr Oyadiran, did not comply with by-law 106 relating to notice and submission of plans for the roads in the lay-out. In my view, he was not entitled to attach this condition as a condition precedent to the approval of the plaintiffs building plans. In Halsbury’s Laws of England, Third Edition, Volume 11, at page 103, paragraph 191, the following passage occurs:-
“Where, however, the local authority, having no objection to the plans submitted, yet usurps jurisdiction by attaching to its approval a condition which it has no power to enforce, a mandamus will lie commanding it to approve the plans as submitted.”
In R. v. Tynemouth R.D.C. (1896) 2 Q.B. 451, C.A., A. L. Smith L.J. said at page 454:-
“It has been decided on many occasions that a local authority cannot disapprove plans unless the plans are in contravention of a lawful by-law or some statute.”
It has not been proved that the plaintiffs’ plans (Exhibits 4 to 14) are in contravention of the Lagos Local Government By-Laws or the Building Regulations thereunder. Indeed, Mr Lawal’s evidence is that the plans are in order and should be approved unless the City Engineer could show cause to the contrary. I find that, in the circumstances, Mr Ogundiya has not shown cause to the contrary. He seems to have confused the City Engineers power to approve building plans with the Council’s power to approve the erection of buildings on particular sites (by-law 6).
On the evidence before me, I would have been disposed, if the proper procedure had been followed in this case, to grant an order of mandamus (which would have been the appropriate remedy) against the Deputy City Engineer to approve the plaintiffs plans, but there is this difficulty. The plaintiff is not seeking an order of mandamus but a mandatory injunction.
It is clear that the order of mandamus is the appropriate order to be directed to any person, corporation or inferior tribunal to do something which pertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice. See Halsbury’s Laws of England. Third Edition, Volume 11 at page 52, paragraph 107, and at page 84, paragraph 159.
In my view, the plaintiff should not have sought the equitable remedy of mandatory injunction which is applicable in quite different circumstances. For example, a mandatory injunction may be granted directing buildings or obstructions to be pulled down or removed. It may also be granted where the injury complained of is in breach of an express agreement; see Halsbury’s Laws of England, Third Edition, Volume 21, pages 361 to 364, paragraphs 757 to 762. Further, interference with the statutory right of an individual may be restrained by a mandatory injunction: Davies v. Gas Light and Coke Company (1909) 1 Ch. 708, C.A.
The present case clearly does not fall into any of the preceding categories. A claim for the equitable remedy of specific performance would be no less appropriate in these circumstances. The plaintiff should have sought an order of mandamus by virtue of section 20 of the High Court of Lagos Act, Cap. 80, and in conformity with Order 59 of the Rules of the Supreme Court (of England).
In the case of the Cherubim and Seraphim (1960) L.L.R. 129, an application by the Society for incorporation under the Land (Perpetual Succession) Act having been refused by the Minister empowered to deal with such an application, the Society followed the correct procedure in seeking an order of mandamus directed to the Minister to hear and determine the application according to law.
In Glossop v. Heston and /sleworth Local Board (1879)12 Ch. D. 102 Brett, L.J. said at page 120:-
“The defendants having done no act, it seems to me that the Court of Chancery has never, without some act done by such a body as this, granted what is called a mandatory injunction against a public body in order to force them merely to enter upon and to do their duty ……………… A Common Law Court could only give damages, but the Court of Chancery could not only give damages if they thought right, but either with damages, or instead of damages, they granted a mandatory injunction against the defendants, directing them to cease from continuing the act which was a wrongful act against the individual. That is the proper function of a mandatory injunction, as it seems to me, and they never gave it in any other case.”
And again, at page 122:-
“Then it is said that nevertheless the defendants are liable to a mandamus to do their duty. Now, supposing they had neglected or refused to do their duty, then I think they would have been liable to a mandamus, but not to a mandamus to be granted by the Chancery Division. It would have been a prerogative mandamus, as it is called, to them as a public body to enter upon and do their duty.”
This Court cannot therefore in the circumstances properly grant a mandatory injunction as claimed by the plaintiff, and this action is accordingly dismissed. In all the circumstances it is ordered that the parties do bear their own costs.