Nuisance is a legal term which has no
definite meaning. It generally covers acts unwarranted by law which causes
inconvenience or damage to either the individual or the public in the exercise
of rights common to all subjects, acts connected with the enjoyment of land,
other environmental rights and acts or omissions declared by statute to be
nuisance.
Nuisance is a term used to register or
express one’s condition of inconvenience
or annoyance caused by a direct or indirect action of another person. It
can also be said that nuisance is the negative effect of somebody’s action or
omission against the normal enjoyment of life by the complainant.
The Tort of nuisance has a restricted
scope and not every inconvenience or annoyance is actionable.
The situations described as nuisance
include:
a. Emissions
of noxious gas or fumes from a factory.
b. Emission
of noxious gas or fumes from moving Lorries, trains or aircraft.
c. Noise
from the crowing of cocks in the early hours of the morning.
d. The
obstruction of public highway for social or religious activity.
e. The
collapse of a building due to the vibrations of another company next door.
Nuisance can be classified into the
following:
1. Private Nuisance.
2. Public Nuisance
PUBLIC
NUISANCE
Public nuisance occurs when a person by
his action or inaction causes inconvenience to the general public. This could
be in the form of blocking the road, the release of fumes from a factory, the
making of loud noise and so on. Public nuisance is generally a crime that is
actionable only by the Attorney General. In Nigeria, public nuisance has been
made criminal by the provision of S.234
of the Criminal Code.
However, in the case of Amos vs. Shell BP Nigeria Ltd (1974) 4 E.C.S.LR, it was held by the
court that a private individual would have a right of action when it comes to
public nuisance if he can establish before the court that by the defendant’s
action, he has suffered damage over and above other members of the society.
In the case of Rose vs. Miles (1815) 105 ER 773, the defendant wrongfully
obstructed a public navigable creek which obstructed the defendant from
transporting his good through the creek. This resulted in the plaintiff having
to transport his goods by land, causing him to incur extra costs. It was held
that although the act of the defendant was a public nuisance, since the
plaintiff was able to prove that he suffered loss over and above other members
of the public, he had a right of action against the defendant. It should be
noted that for a right of action to arise in public nuisance, it is an
individual that has to prove extra loss suffered by him. Thus, a community
cannot bring an action collectively to claim losses suffered through a
defendant’s action. In the case of Amos
vs. Shell BP Nigeria Ltd (Supra),
the defendant constructed a temporary dam in a public navigable creek. This
resulted in the flooding of the farmlands of the people of Ogbia community in rivers state. Also the members of the community
could not pass through the creek on their canoes in order to go to and from the
market. Thus, the plaintiff sued on behalf of the
community. The court held that in the absence of proof of extra loss suffered
by individual members of the community, the community could not bring a
collective action against a public nuisance.
The reasoning behind this judgement is
the consideration of the fact that the community, in suing for a public
nuisance, is attempting to usurp the role of the state in the modern Nigerian
dispensation.
PRIVATE
NUISANCE
Unlike public nuisance, private nuisance
is a tort. It was put in place in order to protect the individual owner or
occupier of land from substantial interference with his enjoyment thereof. As
previously stated, anyone that has a grievance to settle under private nuisance
can bring it to the court of law on a personal basis.
Liability
in Private Nuisance
The basic issue that threads throughout
the tort of private nuisance is to find a way to balance the right of the
defendant to enjoy the use of his land legally with the right of the plaintiff
to use and enjoy his own land without any interference from the defendant. In
order to settle this issue, two criteria have been put up by the courts. They
are:
1. The injury complained of should be:
a) Sensible (In the case of
material damage to land):
the damage which the plaintiff complains about should not be one that is flimsy
or minimal. The plaintiff must at least bring evidence of reduction in the
value of his property.
In the case of Ige vs. Taylor Woodrow Nig. Ltd (1963) L.L.R. 140, the defendant
carried out pipe driving due to the fat that they wanted to erect a structure
in Lagos. Due to this process of pipe driving, a large amount of vibration was
usually caused. This subsequently caused structural damage to the plaintiff’s
house. As a result, the house had to be pulled down. The court held that in
this situation, the material damage suffered by the plaintiff is one that is
quite sensible. Thus, the plaintiff was held to have a right of action in
private nuisance.
(b)
Substantial (In the case of interference with enjoyment): When a plaintiff
is complaining of an interference with the enjoyment of his land, this
interference with enjoyment is one that has to be regarded as substantial. The criterion
for measuring substantial interference was laid down by the courts in the case
of Vanderpart vs. Mayfair Hotel Co Ltd
(1930) 1 Ch. 138, where the court observed that:
Everybody is entitled as
against his neighbour to the comfortable and healthy enjoyment of the premises
occupied by him, and in deciding whether, in any particular case, his right has
been interfered with and a nuisance thereby caused, it is necessary to
determine, whether the act complained of is an inconvenience materially interfering
with the ordinary physical discomfort of human existence, not merely according
to elegant and dainty modes and habits of living, but according to plain and
sober and simple notions obtainable among English people.
This test is also applicable in the
Nigerian Jurisdiction. It was applied in the case of Abiola vs. Ijoma(1970) 2 All N.L.R 268. In this case, both parties
were neighbours but the defendant was rearing poultry. In addition to the noise
coming from the poultry, the smell from the birds affected the health of the
plaintiff. The court held that in this situation, the interference with enjoyment
was a substantial one, thus, giving the plaintiff a valid right of action under
private nuisance.
2. The
conduct of the defendant is unreasonable in the prevailing circumstance: In
order to determine this condition, the following has to be taken into
consideration:
1. The
Locality
2. The
utility of the defendant’s conduct
3. Plaintiff’s
abnormal sensitivity
4. Plaintiff’s
malice:
5. Duration
of Harm.
Defences
The defendant has a range of means of defence in a claim for
nuisance against him in an action. The following defences may be available to
the defendant in a claim against him
for nuisance.
1)
Reasonableness of His Act or
Omission: A
defendant may plead that alleged act of a nuisance was a normal or a
reasonable act to be expected in that circumstance and in that community at that period in time
and that there was no malice in the
act complained against. A person who decides to build his residential house in
an industrial estate cannot complain of
interference or inconvenience occasioned by noise coming from the generator
of a company near to his house.
2)
Statutory Authority: As a general rule, the fact that there is a valid permit by a Government Department is not a licence to commit nuisance.
However, a land that has been earmarked for a purpose by statutory authority,
carrying out such provision will be a defence under statutory authority,
especially when the defendant is not
negligent in doing just that.
For example,
a land earmarked for the construction of roads was used in building a residential house. That can be demolished
and if the owner of the house brings
an action against demolition or for compensation or for specific performance,
the Government Department can rely on the statute as its authority to carry out
the demolition as a defence.
3)
Act of God: Act of God may be a defence in some circumstances. A road that
is carved in and cut into two after a heavy rain and flooding of the area may not be attributable to the
contractor that constructed the road. This is because,
the defendant can plead Act
of God in that circumstance.
4)
Act of a Stranger: An act of a stranger may be a good defence if it is shown that
the defendant has taken steps to discontinue the effect of the strangers act
immediately the act came to his knowledge.
5)
Consent: Consent will be a defence if
the defendant has acted within the terms of agreement and has been reasonable
in his act.
Nuisance
is a situation wherein the action is bringing enjoyment and financial increase
to one party and the other party is suffering from the same action or omission.
Nuisance can be public or private. The plaintiff is the party who suffers from the act or omission causing
nuisance. The private person brings an action in private nuisance on his own
behalf and in his private interest. The Attorney-General brings an action in public nuisance on behalf of the state
and in the interest of the society. He represents the whole people with the
power and resources of the state. It has been said earlier that public nuisance is a crime. As such, it is
the duty of the Attorney-General to initiate the institution of criminal cases against
such persons for their acts
or omission constituting public nuisance.
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