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13 Nov 2018

November 13, 2018

The Rule of Law




The concept of “Rule of Law" is the building block on which the modern democratic society is founded. For the successful functioning of the polity it is imperative that there is enforcement of law and of all contracts based on law. Laws are made for the welfare of the people to maintain harmony between the conflicting forces in society. One of the prime objects of making laws is to maintain law and order in society and develop a peaceful environment for the progress of the people. The concept of Rule of Law plays an important role in this process.
The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality) which refers to a government based on principles of law and not of men. In a broader sense Rule of Law means that Law is supreme and is above every individual. No individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government authority may only be exercised in accordance with the written laws, which were adopted through an established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities. The rule of law has been described as a “rare and protean principle of our political tradition". The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a government of laws, not men’". The term Rule of Law does not provide any thing about how the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or equality etc. but it provides for two basic concepts that is Law must be obeyed by the people and that the law must be made in such a way that it is able to guide the behaviour of its subjects. Different legal theorists have different approaches towards the concept of Rule of Law. Some believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. While other legal theorists believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches.
ORIGIN OF THE CONCEPT OF RULE OF LAW
The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of Henry III in a way introduced the concept of Rule of Law without naming it as Rule of Law. He wrote:
"The king himself ought to be subject to God and the law, because law makes him king."
Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. [5] In India, the concept of Rule of Law can be traced back to the Upanishad. It provides that Law is the King of Kings. It is more powerful and higher than the Kings and there is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. But the credit for developing the concept of Rule of Law goes to Professor A.V. Dicey who in his classic book “Introduction to the Study of the Law of the Constitution" published in the year 1885 tried developing the concept of Rule of Law. As per Dicey no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. This establishes the fact that law is absolutely supreme and it excludes the existence of arbitrariness in any form. According to Dicey where there is scope discretion there is room for arbitrariness. So Dicey held that every man, whatever is his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
DICEY'S THEORY of Rule of Law consists of three main principles:
1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law means the absolute supremacy of law and 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land. Diecy was of the view that all individuals whether if he is a common man or government authority are bound to obey the law. He is of the view that no man can be punished for anything else than a breach of law which is already established, and also that the alleged offence is required to be proved before the ordinary courts in accordance with ordinary procedure.
2. Equality before Law: As per Dicey Rule of law, in the second principle, means the equality of law or equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law. Even the Government Officials are under a duty to obey the same law and there can be no other special courts for dealing specifically with their matters.
3. Constitution is the result of the ordinary law of the land: As per Dicey, in many countries rights such as right to personal liberty, freedom, arrest etc are provided by the written Constitution of a Country. But in England these rights are a result of the judicial decisions that have arisen due to the conflict between the parties. The constitution is not the source but the consequence of the rights of the individuals.
But this principle of Dicey is not applicable in India as in India we consider the Constitution to be the basic ground work of laws from which all other laws are derived.
COMPONENTS OF RULE OF LAW
Rule of Law is a dynamic concept but it is somewhat difficult to define. Every person has its own way of defining rule of law some think it to be the supremacy of law; some think it to be the principles like clarity, universality, stability etc. Due to all these reasons certain ingredients of Rule of Law have been identified and all which need to exist for the concept of Rule of Law to survive.
  • Common ingredients of Rule of Law are:
  • a government bound by and ruled by law
  • equality before the law
  • the establishment of law and order;
  • the efficient and predictable application of justice; and
  • the protection of human rights.

RULE OF LAW IN MODERN SENSE
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos in 1961. According to this formulation-
"The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality".
According to Davis, there are seven principal meanings of the term “Rule of law: (1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions. So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law-a law which is passed in a democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings says -
"In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow".



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November 13, 2018

The Concept of Fixtures under the Nigerian Land Law



Fixtures in Land Law is a concept that relates to land-they are chattels affixed to the land. Hence, any attempt to go further on the subject-matter is a clear call to the doctrine of Quic Quid Plantatur Solo Solo Cedit. This is a common law doctrine which was received into the Nigerian Land Law. This doctrine receives a widespread of attention from jurists and legal scholars, especially under the Nigerian Legal System. The doctrine of Quic Quid Plantatur Solo Solo Cedit simply means that he who owns a land also owns that which is attached to the land; things attached to it above to the heaven and to the depth of the earth. It is for this reason we earlier submitted that the concept of fixtures is embedded in the above stated doctrine. Click on the link to read an article on the definition and nature of land law.

Fixtures may be defined as chattels which belong to the land; this may include anything that has become so attached to the land that forms part of the land. Fixtures in relation to land are chattels, because they are corporeal objects which may be moved from a point to another or be affixed to the building and may be detached at any time. For example, An Air Conditioner is a chattel (it is a moveable object) but it becomes a fixture as soon as it is annexed to a land or building.

The test usually adopted to inquire whether a chattel is capable of being referred to as a fixture to land is a question of law. The principle adopted overtime by the courts is dependent on the following ingredients:

 a) The Decree or Mode of Annexation.

 b) The Purpose or Intention of Annexation.

In the case of Holland v Hodgson (1817) L.R 7, Blackbun J. observed thus:
“There is no doubt that the general maxim of law is, that what is annexed to the land becomes part of the land, but it is very difficult, if not impossible to say with precision what constitutes annexation sufficient for this purpose. It is a question, which must depend on the circumstances of each case, as indicating intention, viz. the decree of annexation and the object of annexation.”

The Decree or Mode of Annexation: A chattel qualifies as a fixture if it is fastened to the land or building either by use of nails or screws or any object with which it may be used to fastened it to the wall. The chattel must be dependent on another object in annexing it to the building else it is only a chattel and not a fixture. “It must not merely stand on its weight or on the ground.” For example, a standing fan in a building does not qualify for a fixture, because it is standing on its weight, however, a ceiling fan annexed to the ceiling qualifies for a fixture, because it is not resting on its on weight.

The Purpose or Intention of Annexation: The principle of law as it relates to fixtures provides that a chattel becomes a fixture if it has been attached as a permanent improvement to the land or as part of the architectural design. We are of the opinion that where a tenant secures a floor to the building where he occupies during the period where a valid lease is in operation will be held to be a fixture. We refer you to the case of Vaudeville Electric Co. v Muriset (1920) 2 CH. 74.

In summary, on the expiration of a lease, all fixtures put to the land by the tenant without permission of the landlord, belong to the landlord and become known as landlord’s fixtures. The types of fixtures that may be removed by the tenants are: Trade Fixtures, Agricultural Fixtures and Ornamental or and Domestic Fixtures.
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November 13, 2018

Understanding the Concept of Bail



The right of an accused person to 0btain bail is a constitutional right, which makes it an essential aspect of Criminal Procedure. The certainty of this assertion is centred on the provisions of section 35 and 36(5) respectively of the Constitution of the Federal Republic of Nigeria 1999 (As amended). To understand the extent of this constitutional, we must first attempt to define the termed Bail, this is because it is the constitutional right of every accused person to apply bail in Criminal proceedings. Blacks Law Dictionary defines the grant of bail as the lawful process where an accused is set at liberty - when arrested, charged to court or imprisoned on security being taken for his appearance on a day and place certain.

Authorities who may Grant Bail Application
The Police and Courts of Justice with competent jurisdiction are two recognised and obvious authorities that may grant bail application.

Police Bail
The power of the Police to grant bail is inferred from sections 17 of the Criminal Procedure Act, Section 129 of the Criminal Procedure Code and section 27 of the Administration of Criminal Justice Law Lagos. Section 27(b) of the Police Act is not also left out. By the provisions, the Police have the authority to grant bail pending the investigation of the alleged offence(s) against the accused person(s). This application is made in writing by either the accused or his surety. We must under that police bail is purely administration, hence the accused person is advised to apply fresh application for bail when arraignment or risk being remanded in prison custody pending his trial – Police bail abates on arraignment of the accused before a Court of Justice.

Court Bail
Court bail is that application which may be sought by the accused person through his counsel upon arraignment or during the course of trial or after judgment but pending appeal. The power of Court to grant bail may be inferred from provisions of the law: section 30 of the Criminal Procedure Act, section 57 of the Criminal Procedure and section 29 of the Administration of Criminal Justice Law Lagos.
The notorious fact we must not take any less is the fact that the power of a Court to grant bail is also centred on its criminal jurisdiction over  the offence(s) charged as well as the offender(s). The power of the Court to grant bail is also discretionary. This is why an accused person who applies bail through his counsel may bring necessary to support his application for bail in order to enable the court exercise its discretion. He refusal of a Court to grant bail to an accused person cannot be appealed against even on grounds of malice. It is advisable that where a Court refuses to grant the accused person bail, he may file fresh application for bail in a similar court or a higher court which has the original jurisdiction to try the offence.

Bail Application in Capital Offences
In capital offences, the High Court of Justice has power to grant bail applicant. However, granting bail in capital offences is seldom (rarely) obtainable, ‘except where there exists cogent and compelling reasons.’ In the case of Oladele v The State (1993) 1 NWLR (pt. 269) 294 at p. 308, the Court observed that: “it is unusual for a person accused of murder to be on bail pending trial, murder being a very serious offence, it is not in the interest of the public that a person charged with murder should be released on bail bail.”
Furthermore, the process of bail application in the North part of Nigeria in the High Court is usually by a process referred to as Motion on Notice usually accompanied with an affidavit.

Conditions for Bail
The following are considered conditions for bail to enable the court exercise its discretion:
a.      The applicant should satisfy reasonable grounds to believe that the accused person did not commit the alleged offence.
b.      The applicant should satisfy that if granted bail, proper investigation of the offence will not be prejudiced.
c.       The applicant should satisfy that if granted bail, he will not jump bail and will always avail himself for trial.
The under listed are other determining factors that the Courts into in order to draw an inference on whether or not to grant bail:
   i.             The gravity of the offence and severity of the punishment.
   ii.           The likelihood of the accused person committing an offence if admitted on bail.
   iii.          The criminal antecedents of the accused person.
  iv.   The health condition of the accused person and whether the prison custody have enabling health facilities to treat him.

Terms of Bail
Terms of bail are not necessarily the same as conditions for bail. The terms of bail simply means requirements the accused person needs to satisfy in order to be admitted on bail. The terms of bail are peculiar to the circumstance of each case.

a.      Bail on Self-recognizance: An accused person, suspect or convict may be granted bail on self-recognizance on the occasion he is not required to provide bonds or sureties for bail. This term is accepted on grounds that the accused person will always avail himself for trial on a set date, time and place to answer the charge or charges made against him. The type of bail term is not usually available, except where the offence charged is a minor offence and where the accused person is a reputable personality in the society.

b.      Bail on bond for fixed amount: An accused person, suspect or convict upon executing a bond for a fixed amount of money without surety that he will appear in Court or Police Station, on a specified time and date to answer allegations made against him. The accused person will be asked to pay the bond where he fails to appear in Court or Police Station on a specified time and date where his appearance is necessary.

c.       Bail on Bond with Surety: This type of bail term is a three-party undertaking involving the State, accused person and his surety. The accused person is released on bail by the State where the surety guarantees the appearance of the accused person on a specified time and date where the accused person’s appearance is deemed necessary in Court or at the Police Station. Section 122 of the Criminal Procedure Act provides thus:


“An accused admitted to bail may be required to produce such surety or sureties as, in the opinion of the Court admitting him on bail, will be sufficient to ensure his appearance as and when required and shall with him or them enter into a recognizance accordingly.”
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12 Nov 2018

November 12, 2018

Definition and Nature of Nigerian Land Law



Definition and Nature of Nigerian Land Law
Land Law is enjoined to regulate the legal relationship of persons to corporeal properties, thereby providing a secure foundation for the acquisition, enjoyment and disposal of it - it describes and regulates the rights, interests and estates on land. It is therefore important to understand and define land, what it is and distinguish between land as a property and or right and other properties. Land is peculiar property because it is immovable unlike other properties, capable of being owned, it is transferable in its form, it is capable of being owned in different forms, it means that different interests may exist on land simultaneously and each interest is a right enforceable by each interest holder.   

The area of Land Law in Nigeria is a complex thing. No doubt it constitutes an area in Civil Litigation where disputes in land matters take a large part of civil suits in the courts. This disputes range from challenge of ownership, threat to possession (trespass) whether actionable under Customary Land Law or the Land Use Act. There is no doubt that we could suppose that the value attached to landed properties in Nigeria is directly traceable to the fact that supposed owners or possessors of it guide it with every possible security needed legally.

Land has been defined in the Interpretation Act (Cap 123 LFN 2004) as “including, any building and any other thing attached to the earth or permanently fastened to anything so attached, but does not include minerals”. Section 2 of the Property and Conveying Law of 1959 defines Land as “…land of any tenure, building or parts of buildings (whether the division is horizontal, vertical, or made in any other way, and other corporeal hereditament, also rent and an easement right, privilege of benefit in, over or derived from land, but not an undivided share in land.”

From the above definition of land as to what is obtainable under the Nigerian Land Law, it will amaze to observe that minerals is omitted from the definition of land notwithstanding literally speaking it forms part of the land. This could be a deliberate omission, since ownership of minerals is the exclusive right of the government; this exclusive right may be inferred from section 3(1) of the Minerals Act, Laws of the Federation 1990, Cap. 226.



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12 Aug 2018

August 12, 2018

The Rule In Rylands Vs Fletcher





The rule in Rylands vs Fletcher is one that borders on strict liability. In the case, the defendant got some contractors to construct a reservoir on his land. Due to the negligence of the contractors, water leaked from the reservoir to the plaintiff’s coal mine located below the land, thus causing extensive damage to it. The conduct of the defendant didn’t appear to come within the scope of any existing tort. Thus, leading to the formulation of the rule in Rylands vs. Fletcher[1]. This rule is embodied in the pronouncement by Blackburn J:
The person who for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his own peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. When the case got to appeal, Lord Cairns, in the House of Lords, added an extra requirement that the thing brought must be a non-natural user of the land.
Ingredients of the Rule in Rylands vs Fletcher
From the above stipulations, it can be deduced that there are some ingredients that need to be established before the rule in Rylands vs Fletcher can be applicable. They are:
(a) Bringing on the Land and Accumulation of the thing
(b)The thing must be a non-natural user of the land
(c) There must be an escape

The rule in Rylands vs Fletcher applies to anything which is likely to do mischief if it escapes. This extends beyond things which are inherently dangerous like gas, petrol or chemicals. It includes harmless things like water which could become dangerous if accumulated in quantities large enough to do mischief.
Bringing and Accumulation of the Thing to the Land

What this means is that in order for the rule in Rylands vs Fletcher to apply, the defendant has to artificially bring to his land the subject matter likely to do mischief. Hence if the thing which causes damage is something which is naturally on the land, the defendant would not be liable.

In the case of Wilson vs. Waddell[2] it was held that the defendant was not liable for water that seeped into the plaintiff’s mines since the water was naturally located in an underground reservoir. In the case of Giles vs. Walker[3] it was held that there would be no liability for vegetation that escapes if it grows naturally on the land in the form of weeds and other uncultivated growth. However, there would be liability if the trees were artificially planted by the plaintiff.

Non-natural Use of the Land
The meaning of natural use of the land can be viewed from two perspective. The first definition of natural use of the land is the use on a land of something which is not in any way artificial. Thus, the growing of weed on a land is a natural use of the land since there is nothing artificial about it. The second meaning of natural use of the land is the use of land which is natural and usual although it may be artificial.

An ideal definition of non-natural use of the land is conveyed in the words of Lord Moulton in the case of Rickards vs. Lothians[4]. He defined non-natural use of the land as:
… Some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community…
Thus, in this case, it was held that water pipe installations in buildings is a natural user of the land, making the rule in Thus, in this case, it was held that the water pipe installations in buildings is a natural user of the land, making the rule inRylands vs Fletcher inapplicable.

There must be an Escape
What this means is that for this rule to apply, the subject matter must have escaped into the land of the plaintiff. In the case of Read vs. Lyons[5], escape was defined by Lord Simmons as the escape from a place in which the defendant has control or occupation of the land to a place over which he has no control or occupation.
In the case of Ponting vs. Noakes[6], a horse reached out and ate a poisonous leaf from a tree in the defendant’s land. This resulted in the death of the horse. The court held that there was no escape since the tree did not extend past the defendant’s boundary.

Defences to the rule in Rylands vs Fletcher
The following are some of the defences that can be used to excuse liability under the rule in Rylands vs Fletcher:
1.     Consent of the Plaintiff
2.     Default of the plaintiff
3.     Act of God
4.     Act of a stranger
5.     Consent of the Plaintiff

Consent of the plaintiff
This is a general defence in the law of torts. It is embodied in the maxim: violenti non fit injuria. Thus, if the plaintiff consents, directly or indirectly, to the use of the property he cannot complain about any subsequent damage. If for example, both tenants in a building agree to the use of a tank placed on the defendant’s floor, if the water subsequently leaks to the defendant’s apartment and causes damage, he cannot complain because he has already consented to it.
However, the plaintiff would have a claim if he can prove that the defendant was negligent. An example of this is if the defendant left the tap running, hence causing flooding of the plaintiff’s place of residence.

Default of the Plaintiff
The rule in Rylands vs Fletcher would not be applicable in a situation in which the damage suffered was as a result of the plaintiff’s own default. In the case of Dunn vs. Birmingham Canal Co[7] the plaintiff knowingly constructed a mine below the defendant’s canal. It was held that since he knew of the danger of constructing beneath the canal but he still went ahead, he had courted liability and as such would not have any remedy.

Act of God
In a situation where the damage caused was as a result of unexpected natural disaster, it would be regarded as an act of God, thus freeing the plaintiff from liability. In the case of Nichols vs. Marshland[8], the defendant had been collecting an artificial pool for years by diverting water from a stream. Subsequently, a very violent rain fell which destroyed the pools and caused water to destroy the plaintiff’s bridges. The courts held that there was no liability since the harm was caused by an unexpected natural event.

Act of a Stranger
The defendant would not be liable under the rule in Rylands vs Fletcher if the damage that resulted came about from an unpredictable act of a stranger. For example, in the case of Perry vs. Kendricks Transport Ltd[9], the defendant was not liable for damage that resulted from the acts of little children who threw a lighted match into the petrol tank of a vehicle.
Also, in the case of Box vs. Jubb[10], the owners of a reservoir were not liable for damage caused to the plaintiff’s land from the overflowing of the reservoir. This was due to the fact that it occurred because a third party emptied its reservoir into the plaintiff’s reservoir.

Application of the Rule of Rylands vs Fletcher in Nigeria
The rule of Rylands vs. Fletcher is applicable in Nigeria through numerous court decisions. The most popular of these is the case of Umudje vs. Shell BP Petroleum Development Co of Nigeria Ltd[11]. In this case, during the cause of oil exploration by the defendant, it blocked a stream from flowing, thus interfering with the fishing rights of the plaintiff. Also, the waste oil accumulated by the defendant escaped to the plaintiff’s land, causing damage.
The court held that the rule in Ryland vs. Fletcher didn’t apply in the case of blocking the stream since the water from the stream didn’t escape to the plaintiff’s land. On the second issue of oil spillage, the defendant was held liable since the waste oil, a non-natural user of the land, was accumulated and it escaped to the plaintiff’s land, causing damage.

References
[1] 1866 L.R 1 Exch 265
[2] (1876) 2 App. Cas. 95
[3] (1890) 62 LT 933
[4] (1913) Ac 263 @ p 279
[5] (1947) AC 156
[6] (1894) 2 QB 281
[7] 1872 LR 7 QB 244
[8] (1876) 2 Ex D1
[9] 1956 1 WLR 85
[10] 1879 4 Ex D 76
[11] 1975 11 SC 155

Source: http://djetlawyer.com
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August 12, 2018

The Principles of Private and Public Nuisance




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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