Nuisance

Public nuisance

A public nuisance is committed where a person carries out some harmful activity which affects the general public or a section of the public. It is both a crime actionable by the Attorney General and a tort actionable by an individual plaintiff where he can show that the defendant’s conduct has caused him particular damage over and above that suffered by the general public.

The plaintiff must show that he has suffered damage which is different in kind not merely degree than that suffered by the general public Damage may include special damage i.e. actual pecuniary loss and general damage e.g. delay or inconvenience provided it is substantial. In Amos v. Shell B-P (Nig.) Ltd, the defendants constructed a temporary dam across a public navigable creek in the Rivers State. The plaintiffs representing the entire Ogbia community brought an action for damages alleging the erection of the dam had caused severe flooding on their land and obstructed the transport of goods to and from the market. The court held that an attempt by a section of the general public to sue generally in respect of losses suffered by them generally cannot succeed. For an individual to succeed, there must be proof of the plaintiff having suffered special damage peculiar to himself from interference with public right.

At common law, an action in public nuisance must be brought with the consent of the Attorney General. However, S. 6(6) (b) of the 1979 Constitution has abolished the restriction imposed by common law. Action in public nuisance can now be maintained by any member of the public without the consent of the A.G.

Private nuisance

The law of private nuisance is designed to protect the individual owner or occupier of land from substantial interference with his enjoyment of land.

Differences between private nuisance and public nuisance

1. Private nuisance is only a tort, while public nuisance is both a tort and a crime.
2. Private nuisance requires an interest in land to be established, while public nuisance does not require any interest in land.
3. Private nuisance does not extend to compensation for personal damage, while personal damage can be compensated in cases of public nuisance.

The some fact may give rise to an action in both public and private nuisance. In both public and private nuisance, the interference complained of must be substantial and unreasonable. Private nuisance falls into three categories:

1. Physical injury to the plaintiff’s property.
2. Substantial interference with the plaintiff’s use and enjoyment of his land.
3. Interference with easement and profits right of way or right to light.

Law of private nuisance aims to strike a balance between the right of the defendant to use his land as he wishes and the right of the plaintiff to be protected from interference with his enjoyment of land. The interference will not be actionable unless it is sensible in the case of material damage or substantial in the case of interference with enjoyment of land. The defendant also will not be held liable unless his conduct was unreasonable.

Sensible material damage

This is damage which is not merely trifling or minimal and which causes reduction in the value of the plaintiff’s property. In St. Helen’s Smelting Co. v. Tipping, where the plaintiff proved that his trees and shrubs had been damaged by fumes from the defendant’s copper held that the plaintiff’s action in nuisance succeeded since there had been sensible making damage to his property. It also noted the distinction between material injury and interference with enjoyment of land stating the nature of locality was irrelevant where there is material damage to property.

In Ige v. Taylor Woodrow (Nig.) Ltd where the defendant contractors were hired by Elder Dempster Agencies Ltd to construct a barge building in the centre of Lagos and in the process heavy vibrations damaged the plaintiff’s neighboring house which eventually had to be pulled down. The court held that the defendants were liable for nuisance caused by the vibration and it was no excuse that what was being done was lawful.

Substantial interferece with enjoyment of land

The interference with the enjoyment of land caused by the defendants conduct must be shown to be substantial. In Vanderpant v. Mayfair Hotel Co. Ltd., Luxmoore J. held that in deciding whether the act complained of interferes with his right and a nuisance thereby caused it is necessary to determine whether it is an inconvenience materially interfering with the ordinary physical discomfort of human existence and not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions obtaining among English people. He further held that the circumstances and character of the locality in which the complainant is living must be taken into account.

In Abiola v. Ijeoma, the plaintiff and defendant occupied adjoining premises in a residential area in Surulere. The defendant kept a poultry. The plaintiff claimed that excessive noise made by the chickens in the early hours of the morning disturbed his sleep and the nauseating smell from the pens interfered with his life.

The court stated that in any organized society, everyone must put up with certain amount of discomfort and annoyance from the activities of neighbors but the standard which should be applied is that of the ordinary reasonable and responsible particular area in Surulere. (The noise and smell). It was held that the plaintiff suffered more than a trivial interference with his enjoyment of his land and the defendants were held liable for nuisance.

In Tebite v. Nigeria marine & Trading Co. Ltd. where the plaintiff brought an action the defendant for nuisance alleging that by operating their machines continuously, the defendants had persistently caused to emit from their workshop loud and excessive noise and conscious fumes which diffuse his premises and caused him much discomfort and inconvenience. The court pointed out that the test to be considered is the standard of the ordinary Nigerian and the locality has all the time to be considered. The court held that both the noise and smell were substantial interference with the plaintiff’s comfort and convenience and he was entitled to claim damage and injunction restraining continuance.

In Moore v. Nnado, where the plaintiff alleged nuisance by the defendant in that the latter caused excessive noise in his neighboring palm wine bar by playing stereograms unreasonably loudly until late every night with evidence of malice. The court held that the degree of nuisance from the defendant’s premises was more than the plaintiff is expected to tolerate in the circumstance and thus liable for nuisance.

Reasonableness of the defendant's conduct

Whether it is a claim in respect to injury to property or in respect of interference with enjoyment of land, it must be shown that the defendants conduct was unreasonable. Reasonableness depends on the circumstances of each individual case and a number of factors are used in determining this issue:

1. Locality: The nature of the locality is taken into account in cases of interference with enjoyment of land but not to physical injury to property.
2. Utility of defendant’s conduct: This may be relevant where such activity is carried out not for any useful purpose but for the purpose of annoying the plaintiff. Some consideration is given when the offensive enterprise is essential and unavoidable in the particular locality.
3. Plaintiff’s abnormal sensitivity: If the plaintiff suffered damage only because of he or his property were abnormally delicate or sensitive and he would not otherwise have been harmed, the defendant will not be liable in nuisance.
4. Defendant’s malice: That the defendant carried on his activity with the sole purpose of causing harm or annoyance to the plaintiff is a factor to be taken into account in deciding whether his conduct was reasonable. Hollywood Silver Fox Farm Ltd v. Emmet (causing plaintiff’s silver foxes to miscarry out of spite by firing guns on his land close to the boundary.
5. Duration of Harm: The essence of nuisance is a continuing state of affairs on the defendant’s land which causes damage to the plaintiff even though the actual damage to the plaintiff may arise from a single isolated occurrence. In Spicer v. Smee, a fire broke out owing to the defendant’s defective electrical wiring which destroyed plaintiff’s neighboring house. Whether the defendant’s conduct was reasonable depends on whether his conduct was temporary or permanent.

Who can sue

Private Nuisance: Private nuisance is essentially an interference with the use and enjoyment of land thus only a person who has an interest in the land affected is entitled to bring an action. They include on owner, lessee under a lease or a person having statutory right of occupancy. Where property is let to a tenant having exclusive possession, the landlord cannot maintain an action in nuisance. A plaintiff may recover damages having established on interference with his use of land and recover by way of consequential damages for harm done to chattel or personal injury.

Public Nuisance: Any person who can show that he has suffered particular damage over and above that suffered by the general public can sue for public nuisance. This includes injury to land, chattel and personal injury. Interest in land is not required. In Castle v. St. Augustine’s Link Ltd, a taxi driver was driving his taxi along a public highway when he was hit in the eye by a golf ball. It was held that positioning of the golf course so close to the highway constituted a public nuisance and the plaintiff had suffered particular damage.

Who can be sued

1. The creator.
2. The occupier.
3. The landlord.

1. The Creator: Whoever creates a nuisance may be sued for it.

2. The Occupier: In most cases, the occupier is the creator but it is not necessarily so. E.g.

• Created by occupier’s servant, acting in the course of employment, the occupier will be vicariously liable.
• Created by independent contractor the occupier would generally not be liable unless the job involves a special risk of nuisance which the occupier has a non-delegable duty to ensure that care is taken.
• Created by a licencee, the occupier will not be liable unless he knew or ought to, the nuisance and failed to take steps to control the licencee.
• Created by trespasser or results from act of nature the occupier is not liable unless (i) he knew (ii) adopts by failing to take steps to abate it Sedleigh – Denfield v. O’Callaghan, where the defendant was held to have adopted a continuing nuisance created by a third party and thus liable to injury suffered by the plaintiff by failing to abate it.
• If the nuisance existed before the occupier, he would not be liable unless he noticed it or should have reasonably noticed it and ignored it.

3. Landlord: Where a tenant has exclusive possession of land, the landlord will not be liable unless (a) he expressly or impliedly authorized the tenant to create the nuisance (b) he left land on which there was already a nuisance for which he was himself responsible and he knew or (c) nuisance arising from failure to repair that which he covenanted or reserved a right to repair.

Damage: Damage must be proved that he has suffered some particular damage over and above that suffered by the general public or that there has been some sensible material injury to his property or substantial interference with his enjoyment of his land. Damage need not be proved where:

1. On the facts, damage can be readily presumed
2. Where the defendant interferes with an easement or right of access of the plaintiff
3. Where harm to the plaintiff is reasonably feared

Defences

1. Contributory Negligence where the nuisance is based on negligent conduct.
2. Volenti non fit injuria where the defendant was not negligent.
3. Act of a strange where the defendant is not at fault.
4. Necessity.
5. Statutory authority.