IMPORTANT NOTICE

Dealing with a continuing nuisance
How do we deal with a persistent and continuing nuisance? What are the remedies available to a complainant? What are the pitfalls to avoid in the process of enforcing his rights?

The first step in addressing a nuisance is, of course, to articulate and quantify the damages that the complainant has suffered as a result of the nuisance.

Secondly, the complainant should make a complaint to the source of the nuisance. It may well be that the nuisance was innocently committed. It may also well be that the nuisance is temporary in nature which will abate within a reasonable time. It is extremely important that the source of the nuisance should be given an opportunity to retrace his steps before a complainant rushes to file an action in court. It is only where after repeated complaints/ appeals the source of the nuisance stubbornly refuses to retrace his steps and put an end to the nuisance that we truly have a situation of a continuous nuisance to deal with.

Thirdly, where applicable, the complainant should lodge a formal complaint against the nuisance to the appropriate public authority. For instance, if a nuisance complaint arises from a structure illegally erected on a public road, or even from a structure erected in a neighbour’s property (see M.K.O. Abiola v F.O. Ijoma) a complaint should be made to the appropriate public authority that is saddled with the responsibility of dealing with such incidents.

In the last resort, and where the public authority fails to act, a suit should be filed in the court to obtain an order of injunction to curb the acts complained of, in addition to a monetary claim for damages that was suffered.

It cannot be overstated that a complainant must follow due process in dealing with a problem of continuing nuisance. Even where a complainant has a good case, he is not allowed to embark on self help. For instance, where a neighbour by his own structure blocks his right of access way, a complainant cannot unilaterally pull down such structure. He must follow the due process of law in applying to a court of competent jurisdiction for an order of mandatory injunction to pull down the offending structure. In deserving cases and where the due process of law is followed, the court will not hesitate to put an end to a nuisance. A case which illustrates this is Ojo Ogbemudia Eholor V Idemudia Idahosa [1992] 2 NWLR (pt 223) 323. Here, the plaintiff erected a building at No. 93A Lawani Street, Benin in 1975. In 1979, the defendant began to erect a building at the adjourning property at No.91A Lawani Street. While the building of the defendant was still at foundation level, the plaintiff told the defendant that the space left between the 2 buildings was too small. The defendant ignored him and did not heed the warning. All efforts made by the plaintiff and the appropriate public authorities to which the plaintiff reported the matter was ignored by the defendant who continued construction. Upon completion of the defendant's building, the rain water from the roof of the building dripping on the roof and premises of the plaintiff's house. As a result, the walls of the plaintiff's house became very damp and his house deteriorated considerably in value. The defendant on his part denied that the erection of his house constituted a nuisance to the plaintiff. In his judgment, the trial Judge held that the act of the defendant in building his house in the manner and at the place aforesaid created a nuisance which injuriously affected the property of the plaintiff and diminished its value, and ordered that the part of the defendant's building which is creating the nuisance be altered, modified or demolished. Aggrieved with this order, the defendant appealed to the Court of Appeal. On reviewing the case, the Court of Appeal held inter-alia that:

Abatement of nuisance by the granting of an injunction against its continuation is one of the ways in which the unwarranted and unjustifiable interference with a plaintiff's right can be terminated…In an appropriate case, therefore, an injunction may be granted in relation to any form of tortuous conduct in addition to an award for damages. The injunction, so granted, may be prohibitory in substance and in form and the most that the defendant may probably hope for is a suspension of the operation of the injunction to enable him bring the nuisance to an end…The evidence in this case showed that the walls of the building of the plaintiff had become damp, that the property was diminishing in value as a result of the nuisance created by the defendant, and that the nuisance would not be brought to an end unless an injunction was granted...The plaintiff having shown that his property was adversely affected by the nuisance created by the defendant is entitled to his claims for injunction and damages.