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DURU Onyekachi Free Law Lecture Series: No. 7

NOTES ON THE TORT OF NUISANCE

by
*
Onyekachi Wisdom Duru Esq.

Nature of Nuisance

Nuisance in Common Parlance

Nuisance is a word that everybody understands and we can say that nuisance in common
parlance means nothing more than inconvenience to people or to another. The law recognizes
that minor inconveniences should be endured as they are inevitable; example if you build your
house along a high way, cars will always pass with their horns hooting.

Nuisance in Legal Terms

In law, nuisance has a more restrictive meaning than it has in an ordinary parlance. It is
not all inconveniences that will succeed in an action for nuisance. Minor inconveniences which
are usually as a result of normal human interaction in the society are not actionable in law. The
law always tries to strike a balance between the conflicting interest of the plaintiff and the
defendant in the society. So we can define the tort of nuisance as an act which gives rise to
unlawful, unwarranted or unreasonable annoyance or discomfort to the plaintiff and which
results in damage to the property of the plaintiff or interfers with his use and enjoyment of his
land.

Injunction is the major remedy in the law of nuisance. This is an equitable remedy which
may be interim, interlocutory, or final. Other remedies include general and special as well as
exemplary damages. Resort to self help also occurs for abatement of nuisance, though the law
frowns at it.

The law of nuisance protects individuals from environmental pollution, such as emission
of fumes, odour, noise pollution vibrations, oil spillages, etc. It also protects individuals from
unwarranted obstructions such as obstruction of the roads/highways, waterways, access roads,
right to light, right to air and even right to sea or obstruction of ones view.

* Contact: Email: onyekachiduru@gmail.com; Tel.:+234-8037707496; +234-8022148248)

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The tort of nuisance can be distinguished from trespass in that the interference which
gives rise to nuisance is usually indirect; unlike trespass which is direct. Also, nuisance can
distinguished from negligence in that most acts of nuisance are intentional. Lastly, it may be
distinguished from the rule in Rylands v. Fletcher in that in nuisance accumulation of harmful
object or substance is not necessary; likewise escape of the accumulated object is not necessary,
though in many instances escape of accumulated object also occurs. But, one must note that the
same set of facts may give rise to liability under nuisance and Rylands v. Fletcher

Nuisance is classified into two: private and public nuisance.

Private nuisance

Private nuisance protects the interest of the occupier of land or premises in the use and
enjoyment of his land. This type of nuisance usually emanates from the defendant’s private land
or his actions in his private capacity. Accordingly, a plaintiff must show that he has some interest
in the land in question. Thus, the land must not be public land. The law of private nuisance seeks
to strike a balance between two conflicting interests: that of an occupier in the using his land as he
thinks fit and that of his neighbour in the quiet enjoyment of his land. Thus, a person must not use
his property in such a way that will cause inconvenience to his neighbours.

In an action for private nuisance, the court considers the following:

i) Whether the injury complained of is sensible in the case of material damage to property
and in the case of interference with enjoyment of land, whether the injury is substantial,
and

ii) Whether the conduct of the defendant is unlawful, unwarranted or unreasonable.

To arrive at the latter conclusion (i.e. [ii]) to court considers the following:

a) The nature of the locality where the conduct takes place.

Here the court considers whether the locality where the nuisance takes place is a
residential, semi-residential, commercial or an industrial area. This is essential because the
plaintiff has no right to expect more than the local standard of the district of the locality where
he resides.

Thus, the position of the law as supported by the case of St. Helen’s Smelting Co. v.
Tippings (1865) F. R. 1883, is that an interference which may be permissible in one locality,
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may constitute an actionable nuisance in another. If a man lives in a town, it is necessary that
be should subject himself to the consequences of those operations of trade which may be
carried on in his immediate locality, which are actually necessary for trade and commerce and
also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the
public at large. Accordingly, if a man needs absolute peace and tranquility, he should live in a
GRA or such places. But, if he chooses to live around the market place or motor-park, he
should not complain about noise.

b) The utility of the defendant’s act or the importance of such an act as another factor that
the courts consider in determining whether the defendants had acted reasonably or not.
Thus, an action which would ordinarily amount to nuisance may be allowed by the court
to go on because of its importance to the society at large. In other words, the courts weigh
the general benefits of the defendant’s action to the society vis-à-vis the inconvenience to
the plaintiff.

For example if a nation is at war and an industry which manufactures arms

inconveniencies a citizen, by causing nuisance, it can be allowed to carry on its activities; but
where there is a sensible material damage to the plaintiff’s property which is substantial, the
court may intervene to award damages to the plaintiff, but not necessarily an injunction. The
rationale being that the plaintiff cannot be expected to bear the burden alone for an action
which benefits the entire public or society. In the Irish case of Bellew v. Cement Company
(1948) LR P. 61, for instance, an Irish Court granted an injunction in an action for nuisance
against a cement company even though the order had the effect of closing for three months the
only cement factory in Ireland at a time when building was an urgent public necessity.

c) The abnormal sensitivity of a person or property is immaterial to the question of

reasonableness. In other words, the Egg-shell skull rule is not applicable in the law of
nuisance. (One cannot take his victim as he finds him). Accordingly, the abnormal
sensitivity of the plaintiff beyond the perception of the general society will not make a
defendant liable. This is still in keeping with the principle of reasonableness in the law of
tort. Thus, the test in the law of tort of nuisance is the objective one in relation to the
plaintiff.

This is consistent with the principle of law enunciated in the case of Heath v. Brighton
Corporation (1908) 98 LT P. 718. In that case, the plaintiff’s church was adjourning an
electricity factory with a machine which produces on constant basis a low hum or noise. The
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congregation did not complain. The preaching was not affected, neither did the attendance
diminish. Only the incumbent of the church who had an abnormal sensitivity to noise no
matter how low was annoyed with the defendant electricity work. The court refused to grant
an injunction to stop the operation of the electricity company and held that there was no
serious inconvenience to warrant a grant of injunction against the electricity factory.

d) The duration of the defendant’s harmful conduct or activity is also taken into
consideration and is relevant in conjunction with other circumstances in determining
whether the said interference was substantial and unreasonable. Thus, a mere temporary
or transient or interim act may not be actionable as opposed to a permanent or
continuous act.

e) The court will also consider whether there is malice or bad faith or ill-motive on the
part of the defendant. Thus, an act which may not ordinarily be actionable may give rise
to liability for nuisance if it is actuated by malice on the part of the defendant.

Finally, it must be noted that the plaintiff who complains of interference with the use and
enjoyment of his land must show by evidence that the interference is substantial and not trivial.
In other words, the question is whether the plaintiff can be reasonably expected to bear the
inconvenience. If the interference is substantial, the court comes to the remedy of the plaintiff.
See the case of Heath v. Brighton Corporation, supra.

The fact of the case of Halsey v. Esso Petroleum Co. Ltd., (1961) 2 All ER 145, illustrates
the tort of private nuisance. It may the summarized as follows: the plaintiff lives on one side of
the road designated residential area, the defendant’s industry or factory is opposite the plaintiff’s
house but in an area designated industrial layout. Acid smuts from the defendant’s factory crossed
over and destroyed plaintiff’s cloths which he spread out in this garden and also the paint of his
car which he parked on the high way in front of his house. There was also a pungent and
nauseating odour emanating from the factory and disturbing the plaintiff but his health was not
affected. The defendants made effort to sound-proof their boilers so as to reduce or eliminate the
noise; but vibrations emanating from the boilers were affecting the plaintiff’s doors and windows
and making it difficult for him to sleep. Then lastly, several tankers were coming to the factory to
lift oil; the noise emanating from the tankers in the night were disturbing the plaintiff’s sleep.
Some of the tankers made the noise inside the defendant’s premises and some made this noise on
the highway or road between the defendant’s premises and the plaintiff’s premises.

The following issues may be gleaned from the above facts:

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i) Whether the act of emission of acid smuts is an inconvenience or discomfort materially

interfering with the ordinary physical comfort of human existence, not merely according to
elegant or dainty modes and habits of living, but according to plain and sober and simple
notions obtaining among the ordinary reasonable and responsible person who live in that
particular area or locality?

ii) Whether the smell and noise from the defendant’s factory is a substantial interference
with comfort or convenience, thus constituting nuisance?

iii) Whether a case of nuisance has been made out against the defendant company?

iv) Whether the plaintiff’s right to enjoyment of his property has been substantially interfered
with?

v) Whether the facts reveal public or private nuisance?

vi) Whether the acts complained of amounted to a public nuisance or private nuisance?

vii) Whether or not the activities of the defendants constituted public or private nuisance?

Public nuisance

Public nuisance refers to that which affects the general public or a section of the public. It
is that which affects the public segment or class of the public by reason that it is indiscriminate in
its effect or widespread. A nuisance may become public nuisance either from its source or its
final effect or destination. Again, a nuisance that affects a class or a segment of a society is
public nuisance and whether the number of persons affected is sufficient to merit public nuisance
is a question of facts depending on the facts and circumstances of each case. Everything is to be
looked at from a reasonable point of view.

Instances, of public nuisance include obstruction of highway or public roads, public

waterways, noises pollution, oil spillage from the activities of multi-national oil companies and
carrying on obnoxious business like operating a brothel in a GRA.

A public nuisance is usually a crime (see section 234 of the Criminal Code and sections
192 & 194 of the Penal Code) which can only be prosecuted by the Attorney General in his
capacity as the custodian of public right. In other words, a private person has no right to prosecute
the crime of public nuisance; the Attorney-General prosecutes.
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Public Nuisance is also a tort actionable by the individual so affected. At common law
such an individual was expected to sue (provided that he can prove particular damage suffered by
him over and above the damage suffered by the general public: Tate and Lyle Ltd v. GLC
Limited [1983] 2 AC 509) as a relation of the Attorney General under what was called a Relator
Action. By relator action we mean an action by a private person suing as a relation/relator of the
Attorney-General. The action is commenced by a private person preparing a statement of claim
and taking it to the office of the Attorney-General for endorsement. If the Attorney-General signs
or endorses his approval, the case will go on, but if he refuses to give his consent, the action dies a
natural death. Where he gives his consent, the Attorney-General is the real plaintiff in the case,
but the relator will bear all the expenses of the litigation.

However, in Adediran v. Interland Transport Ltd., (1991) 9 NWLR (Pt. 214) 155, the
Supreme Court held that “the restriction imposed at common law on the right of action of an
individual in public nuisance is inconsistent with the provisions of section 6(6)(b) of the 1979
CFRN and is to that extent void based on section 1(3) of the said CFRN. According to the
Supreme Court, by virtue of section 6(6)(b) of the 1979 Constitution, the courts are vested with
powers for the determination of any question as to the civil rights and obligations, between
persons, or between government or authority and any person in Nigeria; the implication of which
is that where the determination of the civil rights and obligations of any person is in issue, any law
which imposes conditions for the exercise of that right is inconsistent with the constitutional
provision guaranteeing free and unrestrained exercise of that right and therefore void to the extent
of that inconsistency. Thus, an individual can now maintain an action in public nuisance without
going through the Attorney General.

However, for a private person to sue for public nuisance, he has to show that he has
suffered a particular or special loss/damage over and above that suffered by other members of the
public. In the case of Daodu v. NNPC, the Supreme Court, per Oguegbu JSC, stated the position
of the law thus, “an obstruction of public highway or hindering the free passage of the public
along the highway is a public nuisance and a private individual has a right of action if he can
prove that has sustained particular damage other than and beyond the general inconvenience and
injury suffered by the public and that the particular damage which he sustained was direct and
substantial.” The requirement of proving particular damage will be satisfied if the plaintiff can
show that he has suffered damage which is appreciably greater in degree than any suffered by the
general public.
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It is germane to note that, many a time a class or section of the public will sue for public
nuisance and usually the action will fail as the court will always say that a class action is improper
in such cases. This is because all of them put together are private persons and they cannot enforce
public nuisance. It is better to sue individually by trying to prove that you have suffered over and
above all others. A similar decision was reached in Adediran v. Interland Transport Ltd
(supra), where the plaintiffs/appellants sued in a representative capacity for themselves and on
behalf of residents of a housing estate; the Supreme Court holding 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 a person who has suffered it.

Remedies for Nuisance

The following remedies exist for nuisance. They are

1. Abatement of Nuisance: This refers to self-help in order to stop nuisance. Generally self-
help is not allowed by the court or the law. The court usually frowns at the remedy of self
help. This is to avoid chaos in the society. In minor cases of nuisance, self help as a
remedy may be allowed by law considering that court cases are usually expensive and may
take long to determine.

2. Injunction: This is the most important judicial remedy in cases of nuisance. There are
many types of injunction –

a. Interim injunction – obtained pending the determination of the interlocutory

injunction (applicable in urgent cases).

b. Interlocutory injunction – obtained pending the determination of the final

injunction.

c. Final injunction – obtained at the end of the case.

d. Prohibitory injunction – this exists to prohibit one from doing something.

e. Mandatory injunction – this exists to mandate one to do something.

Injunction is a discretionary remedy and the court has discretion to grant or refuse
injunction so that even if one has made out a good case for the grant of injunction, the court may
still find a good reason to refuse injunction. However, the court’s discretion must be exercised
judiciously and judicially. Thus, in the case of Miller v. Jackson (1977) 3 All ER 338, a village
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cricket ground had been in existence since 1905. In the 70’s people began to build houses
around the area. In 1972, the plaintiff bought a house close to the cricket ground and then sued for
nuisance because of the risk of injury from the cricket ball. Injunction was refused by the court for
two reasons: (i) the plaintiff knew the nuisance was there before building the house and (ii) the
overriding interest of the entire village in the cricket ground will supersede the personal interest of
the plaintiff alone. The court further held that the plaintiff’s only remedy is in damages whenever
any particular damage occurs.

3. Damages: This is the monetary compensation for any loss or injury occasioned to the
plaintiff by reason of the nuisance,. There are many types of damages, namely

a. Aggravated damages

b. Nominal damages

c. Special damages

Defences to an Action for Nuisance

It is germane to note that some of the defences in nuisance are strictly speaking not defences
but only go to show that nuisance has not been proved. The defences are;

i) That the act complained of is not unreasonable, unjustifiable, unwarranted or unlawful.

ii) That there was consent of the plaintiff or volenti non fit injuria. Note generally that it is
not a defence that the plaintiff came into the nuisance but in appropriate cases the court
may use it as a basis for refusal of injunction such as in Miller v. Jackson.

iii) Prescription – that is the defense in law which is to the effect that the plaintiff has slept
over this right for too long and has therefore lost his right to sue. At common law in
England, where nuisance lasts for 20 years, the plaintiff can no longer sue.

iv) Contributory negligence.

v) Act of a stranger: that is, that the plaintiff has not made out any case against the defendant,
he has only succeeded in making out a case against a stranger who cause the nuisance.

vi) Inevitable accident.

vii) Act of necessity.

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viii) Statutory authorization: that is power given by statute. In exercising such powers, the
defendant must ensure that all reasonable care and skill is used and it he does not go
outside the powers given by the statute. Again, statutory defences are usually construed
strictly against the person exercising the power so as to protect the citizens. See the case
of Ekemode v. Alausa where a public officer was given power to clear inland
waterways. In exercising that power he removed some canoes from the water but in the
process he damaged a particular canoe and the court held that the power to remove a
canoe is incidental to the powers to clear the waterway but damaging the canoe is not
part of the powers given to him by statute, he was therefore liable for the damage.
Again, where the defendant pleads statutory authority which is usually the case among
most national companies engaged in oil exploration activities, a lot depends on the facts
of the case and the construction or interpretation of the relevant statute. But, where
spillage occurs in the course of repairing oil pipelines, it is submitted that statutory
authority to lay pipeline does not include authority to cause spillage.

All in all, it is germane to note that in most cases of oil spillage, the plaintiff would not
know whether to sue for negligence, for nuisance, whether public or private or under the rule in
Rylands v. Fletcher. On how to bring the action, a lot depends on the facts of each case; but, it
may be wiser to sue for all in alternatives, and also add a claim simply for damages on the basis of
Ubi Jus Ibi Remedium. For instance, 10 million naira damages for negligence or in alternative 10
million naira under the rule in Rylands v. Fletcher or in alternative 10 million naira damages for
loss suffered by the plaintiffs as a result of the defendant’s conduct or activities.