Public and Private Nuisance. Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private.
Under the common law, persons in possession of real property (land owners, lease holders etc) are entitled to the quiet enjoyment of their lands. However this doesn’t include visitors or those who aren’t considered to have an interest in the land. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance.
Legally, the term nuisance is traditionally used in three ways:
- To describe activity or condition that is harmful or annoying to others (e.g. indecent conduct, a rubbish heap or smoking chimney)
- To describe the harm caused by the before-mentioned activity or condition (e.g. loud noises or objectionable odors)
- To describe a legal liability that arises from the combination of the two. However, the “interference” was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person’s land that affected the enjoyment of that land.
Difference between Public and Private Nuisance.
- Public nuisance is usually a crime. Generally, a private nuisance is TORT only. In some situation it is a crime.
- To succeed in a private nuisance, the plaintiff must have an interest in Land. See the case of Malone V. Laskey (1907) 2 KB 141. In public nuisance there is no such requirement.
- As a general rule, interest in land was a legal requirement to succeed in private nuisance; YOU NEED NOT prove an interest in land.
- In public nuisance, a private person must prove damager over and above other members of the public in order to succeed in a private suit. In private nuisance, a person only needs to prove an interference with his right to the use and enjoyment of land. A person only needs to prove damage where particular damage was suffered. However, where nuisance consist of enforcement on the land of the plaintiff, the law will presume damage.
- In public nuisance, the conduct complained of is usually unlawful. While in Private nuisance, the act complained of may be lawful, for instance, a lawful use of land may pose a nuisance to a neighbor, because of the unreasonable manner the defendant is conducting himself or using his land.
- An isolated or single conduct may be a public nuisance. A private nuisance is often a continuous conduct than a single or isolated conduct.
- A conduct must affect several persons to be a public nuisance. A private nuisance may affect only one person.
A public nuisance is committed where a person carries on some harmful activity which affect the general public or a section of the public, for example, where the owner of a factory cause or permit fumes and smoke to pollute the atmosphere in the locality, or where an obstruction is caused on the public higway.
Public nuisance is basically a crime, actionable by the Attorney General. It is a tort actionable by an individual plaintiff only where the later can show that the defendant’s conduct has caused him “particular damage” over and above that suffered by the general public. See the case of Amos V. Shell B. P (Nigeria) Ltd (1974) 4 E.C.S.L.R 4486 at pg. 448. The reason for this requirement of proof of particular damage is that where a wrong is committed against the community at large, it is considered to be more appropriate to leave the action in the hands of the Attorney General as the representative of the public rather than allow the defendant to be harassed by an unlimited number of suits by private individuals, all complaining of the same damage.
As to the meaning of “particular damage”, on view is that the plaintiff must show that he has suffered damage which is different on kind, not merely in degree, from that suffered by the general public. This will include not only special damage in the sense ofa ctual PECUNIARY LOSS, but also general damage such as delay or inconvenience, provided it is substantial.
The number of people who constitute a “class or public” has not been defined; however LORD DENNING in A.G. V. PYA Quarries Ltd (1957) 2 QB 169 C.A. Indicated that where a disturbance is so widespread that it is unreasonable to expect only one individual to prevent it, then it is a public nuisance. Thus, the question of what is a public nuisance is whether it affects a class or a cross of section of the community.
Examples of Public Nuisance
- Obstructing a road and hindering right of passage or travel.
- Obstructing right to fresh air.
- Selling impure food or drinks.
- The running of gambling houses, or brothel.
- Dangerous activities carried on or near the highway
- The keeping of diseased animal or infested ponds
- Artificial projections onto or over highway.
- Loud music.
- Factory emitting excessive smoke, fumes, or dirt, and causing discomfort to persons in the locality.
- Interference with public safety, health, comfort, convenience, peace etc.
- Organizing a pop festival, causing noise and large amount of traffic. See the case of A.G Ontario V. Orange (1971) 21 DLR 3d, 257.
- Blocking a canal. See Miles V. Rose (1815) 105 ER 773
- Queuing on a highway and obstructing traffic. See Lyons V. Gulliver (1914) ! Ch 631
- Picketing (protest) on a highway.
- Interfering on a navigation rights on a right. See Tate & Lyle V. GLC (1983) 1 All ER 1159
- King obscene calls to woman on different occasions. R V. Johnson (1996) 160 JB 605
Unreasonable use and instruction of highway. See Jacobs V. LCC (1950) 1 All ER 737, Campbell V. Paddington Corp (1911)
Persons who may sue for public nuisance.
Generally, public nuisance is a crime and usually only the attorney General may bring action for it. However, other person such as the police and a private person may also sue to stop or abate a public nuisance. Therefore the afore-mentioned persons may file a suit for public nuisance:
- The Attorney General
- The Police
- A Private Person
The Attorney General
When a public nuisance is serious or it an indictable offence, information may be brought in respect of it in the High Court by the Attorney General of the State or the Federation, as the case may be, depending on which Attorney General has jurisdiction over the matter. The Attorney General as the Chief Law Officer of the state, or country has authority to bring legal action on behalf of the public to abate a public nuisance.
Where a public nuisance is a minor offence, the police may arrest, charge and prosecute the tortfeasor or alleged offender in a magistrate court. Traffic offences which amount to public nuisance, such as, obstruction of traffic on the public highway, and so forth are often dealt with by the police on a daily basis, who may arrest, charge and prosecute same in the magistrate court.
A Private Person
A private person or a group of person may sue a tortfeasor who has committed; or is committing a public nuisance, provided that the private person who is bringing the suit can show that he has suffered special or particular damage over and above the general public.
In other words, he must show actual loss, that is, damage which is greater in degree than that being suffered by the general public. Actual financial loss, or hindrance of access to one’s premises and so forth have been held to be example of special damages or particular damages which have been suffered over and above other member of the public.