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Posted by: westo,
on 6/20/2010,
in category "Legal and Regulatory"
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Abstract: A very common phenomenon today in Nigeria (particularly in Lagos State) is the wanton carrying on of those forms of undesirable activities called Nuisance.
Introduction
A very common phenomenon today in Nigeria (particularly in Lagos State) is the wanton carrying on of those forms of undesirable activities called Nuisance.
A nuisance is an act or omission by a person which is an interference with, disturbance of, or causes irritation or annoyance to another person in the exercise or enjoyment of that first person’s rights. It can be present in the form of common obstruction, noise, vibration, smoke, fume, smell, pollution, flooding, fire etc. Nuisance ranges from the exasperating conversion of our public roads to okada parks, to the deafening music being played by the cassette/CD seller next to your office. It also covers the seemingly innocuous activities of straying pets, to the more complex issues of oil spillage/gas leaking. This purport of this article is essentially to give the reader an insight into the general legal principles as it relates to the tort of nuisance, giving illustrations from decided cases to aid understanding, whilst also exposing the pitfalls to avoid, which may give rise to liability in a potential lawsuit.
Basis of the law of nuisance
Chief MKO Abiola sued his neighbour
for nuisance
The basic doctrine underlying the law of nuisance is that a person ought to so use his own property as not to injure his neighbours. This is embodied in the ancient Latin maxim “sic utere tuo ut alienum non laedas” meaning “so use your own property as not to injure your neighbors”. This principle which was adopted and restated in the famous English case of Rylands v Fletcher [1868] L.R. 3 H.L. 330 as “where a person for his own purpose brings on his land or, collects, or keeps anything likely to do mischief if it escapes must keep it at his peril”. This principle, now known as the rule in Rylands v Fletcher, is widely regarded as the basis of liability that will be imposed on persons who by their acts or omissions caused injury to other persons. A case in Nigeria where the rule in Rylands v Fletcher was applied in its simple form is M.K.O. Abiola v F.O. Ijoma [1970] 2 ALL N.L.R. p. 268. Here, the plaintiff who used to be the richest Nigerian and later Presidential aspirant whose election was annulled by the Babangida regime, who was then living with his family at Surulere, Lagos complained that he was being disturbed by the nuisance occasioned by the poultry erected by the defendant, who occupied the adjourning property, by the boundary fence which separated both buildings. The complaints of the plaintiff were that (a) excessive noise were made by the over 400 chicken in the early hours of the morning which prevented the plaintiff from having a good sleep (b) odious smell emanating from the chicken pens as a result of excreta or droppings from the poultry; and (c) rats, flies and fleas escaping from the poultry into his house. The plaintiff said that he had protested to the defendant that his comfort was being disturbed by the keeping of the poultry so close to his dwelling house but the defendant took no action. Thereupon the plaintiff commenced this action in court claiming an injunction to restrain the defendant’s act of nuisance and damages. After reviewing the evidence led in the case, the trial Judge ruled that:
I accept the evidence of the plaintiff that these chickens do make noise in at the early hours of the morning, and when some 400 chicken do join together to make noise about the same time and at this particular time of the night, it is bound to be excessive and to disturb the peace of a neighbour who is barely 5 feet from their pens. After all, the main object of living in a house is to have a room with a bed in it where one can sleep in peace. Night and up to the early hours of the morning is the time when the ordinarily man takes his rest. .. It seems to me that the noise made by the chickens at these hours of the night is more than triviality, and the plaintiff is justified if he complains.
An injunction was then granted by the court.
The requirement of Injury
In all the forms of nuisance (some of which shall be examined in details later), it is an inflexible principle of law that the existence of a nuisance per se does not provide a remedy. A nuisance is actionable in the court only when it can be shown that an individual(s) has suffered substantial injury from the act or omission complained of. In other words, a complainant must show that he has suffered damages from the acts complained of. It will not be enough to merely experience some feelings of discomfort, annoyance, anger etc or to be turned off by the act complained of. See Adeniran & Anor v Interland Transport Limited [1991] 9 NWLR (pt 214) 155
Categories of nuisance
A nuisance may either be a public nuisance or a private nuisance.
A public nuisance is one which inflicts damage, injury or inconvenience to the generality of the population, or upon all of a class who come within its ambit. A private individual has a right of action for public nuisance if he can establish that he has sustained particular damage other and beyond the general inconvenience and injury suffered by the public and that the particular injury is direct and substantial. See the case of Ejowhomu v Edok-Eter Ltd [1986] 5 NWLR (Pt 39) 1.
A private nuisance on the other hand is one which interferes with a person’s use and enjoyment of land or of some right (such as an easement) connected with land. See Ipadeola v Oshowole [1987] 3 NWLR (Pt 59) 18.
The distinction between public and private nuisance is of importance at law because of the consideration of the proper person to initiate a complaint of nuisance in court. This difficulty often arises when a private person wishes to initiate a complaint which borders on public nuisance in court. The general rule is that a private individual can only initiate proceedings in his own name in respect of an injury sustained from a public nuisance, where he has suffered some particular, direct and substantial damage over and above those suffered by the public at large; or when the interference with the public right involves a violation of some private right of his own, or threat of damage to his property. In all other cases, proceedings must be brought with the sanction and in the name of the Attorney-General. Regardless of who institutes the action, it is critical to note that as the existence of a nuisance per se does not provide a remedy, the failure by a private individual to prove direct and substantial damage to him by a public nuisance may be fatal.
A case that illustrates this principles is Adeniran & Anor v Interland Transport Limited [1991] 9 NWLR (pt 214) 155. Here, the plaintiffs who were residents of Ire-Akari Housing Estate, Isolo, Lagos brought this action on behalf of themselves and other residents of the Housing Estate. The defendant was a limited liability company engaged in the transport business. It owned several long trailers, and used its premises in the estate for repairs workshop and for parking the trailers. The drivers of the trailers often park the trailers on the roads of the estate making the roads virtually impassable and, in many cases, blocking the access roads to the houses of residents. The residents complained that the heavy trailers have rendered the roads unsafe for children, destroyed the roads and knocked down electric poles. The disturbing noise made by the trailers in the processes of parking late at night, and in taking off early in the morning constitutes, in addition to other inconvenient activities, the nuisance complained of. After several protests by the residents of the estate to the defendant company did not yield any result, the residents instituted this action at the High Court. The court held the defendant company liable for the tort of nuisance and awarded damages. It also restrained the defendant from bringing in heavy trailers into the estate. On appeal by the defendant, the Court of Appeal set aside the decision of the High Court. The plaintiffs then appealed to the Supreme Court of Nigeria.
The Supreme Court held that the act of parking a trailer on a road at a housing estate in this case is capable of giving rise to both public and private nuisance; for if it denies the owner of a house entrance into his house, that is a nuisance that is peculiar to him i.e. private nuisance. On the other hand, if the road that the trailer is parked on is a highway, that would make it a public nuisance. In any case, the right of the plaintiffs to institute the action in court was upheld.
The court in considering the facts of the case however held that although all the evidence led by the plaintiffs indicated the existence of some nuisance, none of the plaintiffs was able to prove specific and special injury suffered by each resident. The court held that although all the injuries complained of arise from the same nuisance complained of, each separate injury is a distinct tort, actionable at the instance of the person who suffers it. The suit was then struck out by the court.
So how do we deal with the neighbour that runs his noisy smoking generator next to your bedroom window or is in the habit of having all night prayer meetings every day? We continue next week on how to deal with persistent and continuing nuisance.
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