Topic 2: Nuisance Flashcards
Adediran V Interland Transportation
Principle: Any member of the public can maintain an action in public nuisance without the consent of the Attorney General. An action for public nuisance brought by a whole community of persons or representation will not succeed in the absence of proof of loss by each individual member. The basis for this principle is that for a plaintiff to succeed in public nuisance, he must prove “particular damage”.
Fact: The appellants as residents of the Ire-Akari Housing Estate, Isolo, inter alia brought an action for nuisance due to noise, vibrations, dust and obstruction of the roads in the estate. The Supreme Court dealt with the common law restrictions on the right of a private person to sue on a public nuisance.
Held:
The Court held that in the light of section 6(6)(b) of the 1999 Constitution, a private person can commence an action on a public nuisance without the consent of the Attorney-General, or without joining him as a party. The approach of the Supreme Court in the above case by abolishing the first problem of locus standi in Nigeria is commendable. But the second problem of the rule remaining is that the public or group cannot sue by representation and claim special damages for individuals when they do not suffer equally.
Moore V Nnado
Principle: To be actionable in nuisance, the alleged interference must be substantial. The law of private nuisance protects property owners, against interference in the use and enjoyment of their property. It has always been a question of degree on the facts of the case whether that interference is sufficiently serious to constitute an actionable “private nuisance”.
Excessive noise from defendants palm wine bar interfered with plaintiff’s enjoyment of his land.
Held: The court viewed that though the defendant’s act of using his land was lawful, the plaintiff was equally entitled to the quiet enjoyment of his property. In striking a just balance therefore, the court made reference to all the circumstances of the case including the time of operation, intensity of the noise and duration of the noise whether it is merely transitory or continuous. The court held that the degree of noise was more than the plaintiff is expected to bear in the circumstance. It was also discovered that the defendant intentionally wanted to annoy the plaintiff. The court concluded that a person who lives in a noisy neighbourhood is precluded from maintaining an action in a nuisance from noise. He can only complain of any additional noise and bring an action if such additional noise is substantial.
Christie V Davey
Principle: If the defendant carried on his activity with the sole or main purpose of causing harm or annoyance to the plaintiff, the defendant’s conduct would be deemed unreasonable and a nuisance.
Fact: The plaintiff and defendant lived in adjoining houses. The plaintiff gave music lessons and this annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the lessons were in progress.
Held:
The court held that this malicious motive made the defendant’s conduct unreasonable and a nuisance. Had he not been trying to disturb the lessons, he might have had the right to make a noise, just as the claimant did with his lessons and parties. The plaintiff was held to be entitled to an injunction because of the defendant’s malicious behaviour.
Abiola V Ijoma
Principle: Noise and Smell may constitute a nuisance.
Fact: The plaintiff and defendant were occupants of adjoining premises in a residential area in surulere, lagos. The defendant kept chicken pens against the boundary wall. The plaintiff brought action that the chicken made excessive noise in the early hours of the morning and disturbed his sleep and that the smells from the pens interfered with his comfort.
Held:
Dosunmu J, in the High Court of Lagos, Held that this was an actionable nuisance. Citing with approval the dictum of Luxmoore J, in Vanderpant v Mayfair Hotel Co Ltd, (1929) All ER 296, the learned judge said,I do not believe that the plaintiff is being fanciful in all his complaints of excessive noise and smells and they are, in my judgement, more than a trifling inconvenience that an ordinary person living in that part of Surulere, which is a residential area can be called upon to bear. The plaintiff was awarded damages and injunction restraining further acts of nuisance by the defendant.
St Helens Smelting V Tipping ltd
Principle: Fumes may constitute a nuisance, especially when it causes physical damage, such which may be scientifically proved.
Fact: The claimant’s estate was situated in an industrial area, and, in deciding whether the fumes from the copper works amounted to nuisance,
Held:
The House of Lords distinguished between nuisances causing actual injury to property, as in this case, and nuisances causing personal discomfort. In the latter case, claimants should be prepared to put up with the level of discomfort common to the area in which they are situated. However, claimants were not expected to put up with actual damage to their land resulting from the normal activities of the locality, and so an injunction was granted. It was established that whether interference with land is reasonable may depend on the locality, and what is a nuisance in a quiet residential area may not be a nuisance in an industrial location.
Hunter V Canary Wharf
Principle: Dust may constitute a nuisance, it’s a question of degree in consideration with other factors.
Principle 2: Supporting Khorasandjian v Bush It is only claimants with a right in land that can sue for private nuisance, which, (without going into the intricacies of land law) essentially limits the right to sue to those who own or rent land, or for some other reason have exclusive possession of it.
Fact: The case arose from the construction of a tower block at Canary Wharf in East London. An action concerning the effects of the construction work was brought by local residents, and one of the issues that arose from the case was whether excessive dust could be sufficient to constitute damage to property for the purposes of negligence
Held:
The Court of Appeal concluded that the mere deposit of dust was not in itself sufficient because dust was an inevitable incident of urban life. In order to bring an action for negligence, there had to be damage in the sense of a physical change in property, which rendered the property less useful or less valuable.
Khorasandjian v Bush,
Fact and principle are in pari material with Canary Wharf supra
It also altered the rule in Malone V Laskey as to who can bring an action, pulling that anyone who has an occupational interest in a property, who is not merely a licensee can also bring an action in private nuisance.
Sedleigh-Denfield v O’Callaghan, (1940)
Principle: An occupier who knows of a danger and allows it to continue is liable,even though they have not created the danger in the first place.
Principle 2: What constitutes a nuisance is limitless and it’s a question of fact of each case.
Fact: The defendants, an order of monks, occupied some land where there was a ditch. The local authority had built a pipe which took water away from the ditch; this was done without the defendants’ knowledge and, in legal terms, the workers who built it were considered trespassers. The pipe had a grate to keep out leaves, but it was wrongly placed, and eventually, some three years after the pipe had been laid, it became completely blocked with leaves. As a result, neighboring land owned by the claimant became flooded. By this time, the defendants knew that the pipe existed because it drained their own land.
Held:
The House of Lords held that an occupier who knows of a danger and allows it to continue is liable,even though they have not created the danger in the first place.
Kennaway v Thompson, (1980)
Principle 1: An injunction would not be refused merely because the public has an interest in the continuance of the defendant’s activity.
Principle 2: Erle CJ opined that there is a need for “mutual sacrifice” in the affairs of life in a sense neighbourhood. This explains the Latin maxim, “sic utere tou ut alienum non laedas”
Fact: The claimant owned land near Lake Windermere. A motor-boat club had been organising boat races and water-skiing on the lake for several years, and the claimant was aware of this when she started building a house on her land, but believed she would not be disturbed by the noise. However, by the time the house was finished, the club had expanded, and was holding more frequent meetings, involving more powerful and noisier boats. It even began running big national and international competitions. The claimant sought an injunction to restrain the club from causing or permitting excessive noise to come onto her land. The motor-boat club argued that there was a public interest in the facilities of both racing and observing the sport being made available to a large number of people.
Held:
The Court of Appeal held that the claimant was entitled to an injunction restraining the club from carrying on those activities which caused a nuisance to her in the enjoyment and use of her land, despite the public interest in those activities. However, they framed the injunction so that it was limited, rather than completely stopped, the club’s activities.
Attorney General, AG v PYA Quarries Ltd
Tag: Public Nuisance
Fact:The defendants blasted rocks in their quarry. The dust and vibration disturbed nearby dwellers and the Attorney General brought action on behalf of the county councils responsible for the areas. The defendants argued that it was not more than a private nuisance as few people were affected for it to be a public nuisance. Held: The defendant company was liable for a public nuisance and the Attorney General was entitled to relief… In this case, DENNING LJ defining public nuisance and the reason of the Attorney General bringing action said: “A public nuisance is a nuisance which is so widespread in its range, or so indiscriminate in its effect, that it would not be reasonable to expect one person to take proceedings on his responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.
Amos V Shell BPN
Principle: An action for public nuisance brought by a whole community of persons or representation will not succeed in the absence of proof of loss by each individual member. The basis for this principle is that for a plaintiff to succeed in a public nuisance, he must prove “particular damage”.
The plaintiffs sued the defendants in a representative capacity claiming special and general damages. It was alleged that the 2nd defendants as contractors to the first, had in the course of oil mining operations built a large earth dam across The Plaintiffs ‘ creek. As a result, farms were flooded and damaged; the movement of the canoe was hampered, and agriculture and commercial life was paralyzed. One of the issues was whether special damages could be claimed in a representative action, when the plaintiffs suffered unequal losses, or whether the plaintiffs as the general public could claim for losses suffered by them individually. Held:
It was held, dismissing the claim:1. That since the creek was a public waterway, its blocking was a public nuisance and no individual could recover damages therefore unless he could prove special damage peculiar to himself from the interference with a public right.2. That since the interest and losses suffered by the plaintiffs were separate in character and not communal, they could not maintain an action for special representative capacity.
Savage v Akinrinade, (1964) LLR 238
Principle: For a person to successfully sue for public nuisance, he must show that he has suffered damage which is appreciably greater in degree than any suffered by the general public. In other words, he must prove that he has suffered “particular damage”.
Fact: The defendant was building a multistorey building blocked a street with a heap of sand thereby interfering with the access of staff, parents and pupils to the plaintiff ‘s school. In a claim for public nuisance and damages. The plaintiffs had alleged that their right of way had been obstructed by the erection of the multistorey building by the defendant and had sought an injunction and removal of the offending building
Held: Omololu refused to grant an injunction, apparently because the plaintiffs could not establish that they suffered greater inconvenience than the public.
Rose V Miles
Principle: For a person to successfully sue for public nuisance, he must show that he has suffered damage which is appreciably greater in degree than any suffered by the general public. In other words, he must prove that he has suffered “particular damage”.
The defendant wrongfully fixed his boat on a public navigable water, thereby obstructing passage of other boats. The plaintiff who was compelled to unload his boats and transport his cargo by land at great expense claimed for damages.
Held: The plaintiff had proved that his convenience was substantially interfered with and the defendant was liable for public nuisance and damages.
Campbell v Paddington Corporation, (1911) 1 KB 869
Fact: The plaintiff usually let rooms in her house to persons who want to watch public processions passing along the street. The defendant city council unlawfully erected a stand in the public street, so that members of the city council could watch the funeral procession of KING EDWARD Vll. The stand obstructed the view from the plaintiff’s house and reduced the letting value of the rooms. She sued for public nuisance.
Held: The stand constituted a public nuisance, and the plaintiff was entitled to maintain an action and recover for the special damage which she had suffered through the loss of view and rents.
Halsey v Esso Petroleum Co Ltd, (1961) 2 All ER 145
Fact:The plaintiff’s sleep was habitually disturbed by noise from the defendant company’s vehicles, and the paint on the body of his car that was parked in the street was damaged by acid smuts blowing from the defendant’s factory. He sued for public nuisance and damages.
Held: The plaintiff had suffered damage which was greater than any suffered by the general public and he was entitled to recover damages in public nuisance.
Ejowhomu v Edok-Eter Mandilas Ltd, (1986) 5 NWLR
The defendant’s company wrongfully blocked a public highway thereby barring access to the plaintiff’s poultry farm, and resulting in business losses to the plaintiff. Held: The plaintiff was entitled to recover for this public nuisance, because the injury he suffered was beyond the general inconvenience and injury suffered by the public
Vanderpant v Mayfair Hotel Co Ltd, (1929) All ER 296
The defendant hotel operated opposite the plaintiff’s house. The plaintiff sued for public nuisance and for an injunction, to stop the defendant hotel from obstructing the highway and access to his premises, and to restrain the defendants from interfering with the comfort of his house by noise arising from the hotel, in the form of shouting, loud talking, the handling of kitchen, or domestic utensils, milk churns and other articles. Held: The plaintiff could maintain action for public nuisance having proved particular damage which were direct and substantial.
R V Ong
The defendant had planned to switch off the floodlights at a Premier League football game between Charlton and Liverpool, as part of a betting scam that involved placing bets on the fact that the lights would go out. The defendant was charged with conspiracy to cause a public nuisance. The defendant pleaded guilty and was sentenced to four years imprisonment. He appealed against this sentence.
R V Ruffel
Facts: The defendant had thrown an ‘acid house’ party which had attracted thousands of people. The party involved very loud music that continued overnight for some 12 hours. The party had caused traffic to block a road leading to the site and the woodlands had been littered with human excrement. The defendant was accused of the common offence of public nuisance and was convicted. He was sentenced to a suspended sentence of 12 months and had been fined £7,000. The defendant appealed against his sentence.
R V Larry
All the defendants called all emergency lines just to pull a prank, it caused hardship to the general public. Court held that their act constitutes a public nuisance.
Eholor v Idahosa, (1992) 2 NWLR (pt. 223) 323
Principle: For an action for private nuisance to succeed, the plaintiff must prove that his property or peace has been substantially interfered on.
Fact: The respondent erected a building in 1975 and warned the appellant about the four-foot gap between their buildings and therefore too small. The appellant did not heed the warning, and the respondent made a complaint to the Town Planning Authority as the appellant’s building construction violated the building regulations. The completed building had a height of 40 feet, had three floors and rainwater from its roof was dripping on the respondent’s house, making its walls damp and causing considerable deterioration. The trial judge found that the appellant had been warned, and his actions had created a nuisance that caused injury to the respondent’s property. The appellant argued that the breach of building regulations did not constitute a nuisance, and there was no evidence that the respondent had suffered any injury.
Held:
The court rejected the appellant’s argument and held that an act or omission need not necessarily be a breach of building regulations or unlawful to constitute a private nuisance. The appellant created a private nuisance to the respondent by erecting his building in a way that caused rainwater to drip onto the respondent’s property, which resulted in dampness and deterioration of the value of the respondent’s property. The court found that the appellant ignored warnings from the respondent and the town planning authority about the possible consequences of his building construction. The court held that a private nuisance can be caused even by a lawful act that unduly amd substantially interferes with a neighbor’s enjoyment of their property.
Malone v Lasky, [1907] 2 KB 141
Principle: Only those who have interest in the property or proper right of occupation that can maintain an action for a nuisance.
Fact: The wife of a tenant of premises was injured when a cistern was dislodged by vibrations caused by the defendant. Held:
The wife had no claim in private nuisance, as she had no proprietary or possessory interest in the land.
Barker V Herbert
A removed the railings on the defendant’s property, thereby causing injury to the plaintiff. The court held that the defendant could not be responsible for the nuisance of a third party, except where he becomes aware of the property and let it continue.
Goldman V Hargrave
Principle: Where an occupier becomes aware of the existence of a nuisance, he is under a duty to take positive action. The standard of care imposed on the occupier is subjective rather than the normal objective standard. In determining the occupier’s liability, the court must take into account the cost of abatement and balance it against the occupier’s resources. In this context resources means financial and physical resources.
A redgum tree on the appellant’s land was struck by lightning and caught fire. The appellant had the tree cut down and left the fire to burn out. A strong wind got up and the fire spread and damaged the respondent’s property. Held:
The Privy Council held that where an occupier becomes aware of the existence of a nuisance, he is under a duty to take positive action. The standard of care imposed on the occupier is subjective rather than the normal objective standard. In determining the occupier’s liability, the court must take into account the cost of abatement and balance it against the occupier’s resources. In this context resources means financial and physical resources. The appellant was held liable for failing to abate the nuisance.
