Element of Public Nuisance:
- That the Nuisance is Material: The nuisance must be real and affect the comfort and convenience of the people, that is to say the conduct must have caused a real or actual discomfort or inconvenience. The question of materiality or realness if the nuisance is subject and is a question of fact in each case.
- That The Nuisance is Interfering with Ordinary Comfort or Causing Inconveniences: The plaintiff must establish that the act of the defendant interfered with his comfort and convenience, and that it was beyond what one would reasonably be expected to bear. The object of criminal law is to prevent repetition of the act or harm. In public nuisance, a single act of nuisance without a preparation is enough to sustain an action.
In the case of ROSE V. MILES (1815) 105 ER 773, the defendant wrongfully moored his barge on public navigation water, thereby obstructing passage of other boats. The plaintiff was compelled to unload his boats and transport his cargo of other boats through land at great expense.
In a claim for damages, the court held: that the plaintiff had proved particular damage and the defendant was liable for nuisance and damages.
In the case of Savage v. Akinrinade (1976) 1 QBD 314, the defendant owner of a house abutting on a public road, reacted a protruding lamp overhanging the highway. As a result of a repair, the lamp fell and injures the plaintiff, a passer-by on the highway. The court held: that the plaintiff could sue for negligence, public nuisance and damages, and the defendant was liable.
Private Nuisance – Element of Public Nuisance
The rationale and origin of private nuisance are quiet different from those of public nuisance. Whereas public nuisance involves injury to the public at large, and the rights of the private individual to receive protection in tort where he can prove particular damage to himself and irrespective of his ownership or occupation of land, the law of private nuisance is designed to protect the individual owner or occupier of land from substantial interference with his enjoyment thereof.
A private nuisance is any continuous and unreasonable interference with a person’s use of his land, comfort, health, unreasonable use by a person of his land or property to the detriment of his neighbor.
Categories of Private Nuisance
- Physical Injury to the Plaintiff’s Property: Example, where the plaintiff’s crops are destroyed by fumes from the defendant’s factory, or where vibrations from the defendant’s building operations cause structural damage to the plaintiff’s house.
- Substantial Interference With the Plaintiff Use and Enjoyment of his Land: Example, where the plaintiff is subjected to unreasonable noise or smells emanating from the defendant’s neighboring land.
- Interference with Easements and Profits: Where the defendant wrongfully obstructs the plaintiff’s right of way or right to light.
Factors court of law put into considerations to decide whether private nuisances have been committed or not
In determining whether nuisance, especially, private nuisance have been committed, competent court of law considers one or combination of factors which includes:
- Whether there is physical injury or sensible material damages.
- Whether there is substantial interference with the use and enjoyment of land.
- Unreasonable conduct of the defendant
- The malice or motive of the defendant.
- The nature of the locality
- The utility of the acts of the defendant.
- Extra sensitivity of the plaintiff or his property.
- Duration of the harm or inconvenience
- Prescription or the right to commit the nuisance
- Ability of the defendant to avoid the nuisance
- Practicability of the relief sought by the plaintiff
- Excessive nature of the conduct
- The carelessness of the defendant
- The state and condition of the plaintiff’s land.
Who can Sue for Private nuisance
Since private nuisance is essentially an interference with the use and enjoyment of land, only a person who has an interest in the land affected is entitled to bring an action. See the case of Read V. Lyons (1947)A.C.156 at pg.183.
Thus, an owner in fee simple, lessee under a lease or a person having a statutory right of occupancy will have a sufficient interest in the land to maintain an action. See the Land Use Act, Laws of The Federation, 1999. A person having no legal, equitable or statutory interest in the property, such as guest, a lodger or a member of the owner’s family, cannot sue for private nuisance, see the case of Malone V. Lasky (1907) 2 K.B. 141; their only course will be to sue in negligence in respect of any damage they may have suffered personally.
Furthermore, even a person who has an interest in the land cannot sue if he is not in possession but has only REVERSONIARY INTEREST.
Thus, where property is let to a tenant having exclusive possession, the landlord cannot sustain an action in nuisance in respect of any activity of the defendant which occurs during the tenancy; see the case of Cooper V. Crabtree (1882) 20 Ch.D 589. Unless he can show that the activity has caused or is likely to cause permanent damage to the property, for example, damage due to vibrations set up on the defendant’s land, which will injure his reversionary interest. See the case of Colwell V. St. Pancras Borough Council (1904) Ch. 707.
Defense for Nuisance
A defendant may plead any of the following defenses to claim for nuisance:
- Necessity: In the situation where the nuisance was committed to avoid a greater evil. See Neild V. LNWRY (1874) LR 10 Ex4.
- Contributory Negligence of the Plaintiff: That the plaintiff contributed to the nuisance.
- Reasonableness of the Act, Having Regard to the Locality: A defendant may plead that the act alleged to be a nuisance was a normal or reasonable act to be expected in the given community. A person, who moves into an industrial estate to live, would obviously have to put with the reasonable hazards to be expected in such an environment.
- Consent: Such as when a tenant lets a building and uses it for an act which is not unreasonable. Consent is a defense provided the defendant was not negligence. See Leaky V. National Trust (1980) QB 485 at 515.
- Trivity: The defense may plead that the alleged nuisance is trivial. The triviality or transience of the alleged nuisance is a defense.
- Act of God: Is a defense in appropriate situation, unforeseen circumstances beyond human imagination.
- Act of Stranger: These may be a good defense, provided that the state of affairs is not permitted to continue for an unreasonable period of time. See Smith V. Scott (1972) 3 All ER 645
- Statutory Authority or Town Planning Permission: As a general rule, the fact that there is a valid permit, license, or approval for the use of premises for a particular purpose is not a license to commit nuisance, nor does a license afford a valid defense. See the case of Manchester Corp V. Frnworth (1930) AC 171 HL
However, where an area is zoned for a certain activity, such planning permission may be a defense, especially if the defense was not negligence, see Hunter V. Canary Wharf (1996) 1 All ER 482
Remedies for Nuisance
Whether a nuisance is a public or a private nuisance, the remedies for nuisance include:
- Abatement: This is the stopping of the nuisance, and the abatement may be done by the defendant through self-help. See Buton V. Winter (1993) 3 All ER 847. It is important to note that self-help by the plaintiff favored by the courts. This is so; for the abater is trying to abate the nuisance may infringe on another person’s right, such as, trespass on a neighbor’s property or land, or breach the right of a tenant.
Difference between Trespass to land and nuisance
Trespass: This is direct physical interference with land, such as, placing rubbish on a neighbor’s land. There must be a wrongful entry of an object, or person on land.
Generally, trespass to land is not a crime, but it may be done, or be a part, or lead to a crime.
Nuisance: Nuisance can be created on the defendant’s own land and affect the plaintiff, such as, noise, emission of heat, dust, smoke and so forth. See Hunter V. Canary Wharf Ltd (1997) AC 655
Difference between Negligence and Nuisance
Negligence: Protects interests in one’s person, property and land. Negligence is concerned with the type, nature, or character of the defendant’s conduct which must be negligence.
Nuisance: Protects rights and interests in the use and enjoyment of land. Nuisance is concern mainly with the invasion of interests, whether or not the invasion is done innocently, negligently or intentionally.
Who can Sue in Nuisance – Element of Public Nuisance
The proper defendant in an action for public or private nuisance is the person who bears “some degree of personal responsibility” for it. See the case of Sedleigh-Denfield V. O’Callaghan (1940) A.C 880 at pg.897, Per Lord Atkins. He may be either:
- The Creator
- The occupier of the premises from where the nuisance emanates, or
- In some circumstances, the landlord who is out of occupation of such premises.
INEFFECTUAL DEFENCES TO AN ACTION IN NUISANCE
It is no defense to an action in nuisance that the activity complained of was for the benefit of the community; See the case of Tebite V. Nigeria Marine & Trading Co. Ltd (1971) 1 U.L.R 432; Nor is it a defense that the defendant exercised all care and skill in carrying out his activity. See also the case of Lagos City Council V. Olutimehin (1969) 1 All N.L.R. 403, pg. 414, 415; though this is a factor which may be taken into account in determining whether his conduct was reasonable or not.
It has also been established that it is no defense that the plaintiff came to the nuisance. Thus, where the plaintiff bought a house close to a noisy and smoky factory, he was held to be entitled to succeed in nuisance and it as no defence that the factory has been in existence for three (3) years before the plaintiff arrived, since he came to the house…With all the right which common law can afford and one of them is a right to wholesome air.
However, a plaintiff who chooses to live in an industrial or manufacturing district must put with comfort which the average inhabitant of that district might reasonably expect. In other words, the plaintiff has no right to expect more than the local “standard” of the district. What would be nuisance in Ikoyi would not necessarily be so in Ebute Mettas.
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