According to the Black’s Law Dictionary 9th Edition, Nuisance can be defined as:
A condition, activity, or situation (such as a loud noise or foul odour) that interferes with the use or enjoyment of property
Ordinarily, the word nuisance means anything or person that causes annoyance, irritation, or inconvenience. In law, it is not every inconvenience, irritation or trouble that is actionable as a nuisance, though, what is considered to be a nuisance is always subjective and always depends on the facts of each case. It has been defined as anything done to hurt or to the annoyance of the land, tenements or hereditaments of another and not amounting to trespass.
Nuisance is derived from the French word “nuire” which means to hurt or to annoy. Nuisance is different from trespass to land because while trespass to land is actionable per se and it is a direct physical interference with land, nuisance is generally not actionable per se and needs not to be a direct interference, but it must be continuous. The term nuisance is traditionally used in three ways:
Nuisance is that breach in tort that is mostly concerned with the protection of the environment, there are areas of nuisance such as obstruction of highway or access to highway. Nuisance can also be used for the protection of private rights, right to the enjoyment of land either privately or as a community.
Nuisance can be classified into the following:
This occurs when a person by his action or inaction causes inconvenience to the general public. This could be in the form of blocking the road, the release of fumes from a factory, the making of loud noise and so on. A public nuisance is generally a crime that is actionable only by the Attorney General. In Nigeria, public nuisance has been made criminal by the provision of S.234 of the Criminal Code.
However, in the case of Amos vs. Shell BP Nigeria Ltd, it was held by the court that a private individual would have a right of action when it comes to a public nuisance if he can establish before the court that by the defendant’s action, he has suffered damage over and above other members of the society. Thus, in the case of Rose vs. Miles, the defendant wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his goods through the creek. This resulted in the plaintiff having to transport his goods by land, causing him to incur extra costs. It was held that although the act of the defendant was a public nuisance since the plaintiff was able to prove that he suffered loss over and above other members of the public, he had a right of action against the defendant.
It should be noted that for a right of action to arise in public nuisance, it is an individual that has to prove the extra loss suffered by him. Thus, a community cannot bring an action collectively to claim losses suffered through a defendant’s action. In the case of Amos vs. Shell BP Nigeria Ltd, the defendant constructed a temporary dam in a public navigable creek. This resulted in the flooding of the farmlands of the people of Ogbia community in rivers state. Also, the members of the community could not pass through the creek on their canoes in order to go to and from the market. Thus, the plaintiff sued on behalf of the community.
The court held that in the absence of proof of extra loss suffered by individual members of the community, the community could not bring a collective action against a public nuisance. The reasoning behind this judgement is the consideration of the fact that the community, in suing for a public nuisance, is attempting to usurp the role of the state in the modern Nigerian dispensation.
Unlike public nuisance, a private nuisance is a tort. It was put in place in order to protect the individual owner or occupier of land from substantial interference with his enjoyment thereof.
The basic issue that threads throughout the tort of private nuisance is to find a way to balance the right of the defendant to enjoy the use of his land legally with the right of the plaintiff to use and enjoy his own land without any interference from the defendant. In order to settle this issue, two criteria have been set up by the courts. They are:
1. The injury complained of should be:
Sensible (In the case of material damage to land): the damage which the plaintiff complains about should not be one that is flimsy or minimal. The plaintiff must at least bring evidence of a reduction in the value of his property. In the case of Ige vs. Taylor Woodrow Nig Ltd, the defendant carried out pipe driving due to the fact that they wanted to erect a structure in Lagos. Due to this process of pipe driving, a large amount of vibration was usually caused. This subsequently caused structural damage to the plaintiff’s house. As a result, the house had to be pulled down. The court held that in this situation, the material damage suffered by the plaintiff is one that is quite sensible. Thus, the plaintiff was held to have a right of action in private nuisance.
Substantial (In the case of interference with enjoyment): when a plaintiff is complaining of interference with the enjoyment of his land, this interference with enjoyment is one that has to be regarded as substantial. The criteria for measuring how substantial interference is was laid down by the courts in the case of Vanderpart vs. Mayfair Hotel Co Ltd where the court observed that:
“Everybody is entitled as against his neighbour to the comfortable and healthy enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused, it is necessary to determine, whether the act complained of is an inconvenience materially interfering with the ordinary physical discomfort of human existence, not merely according to elegant and dainty modes and habits of living, but according to plain and sober and simple notions obtainable among English people.”
This test is also applicable in the Nigerian Jurisdiction. It was applied in the case of Abiola vs. Ijoma. Therein, both parties were neighbours but the defendant was rearing poultry. In addition to the noise coming from the poultry, the smell from the birds affected the health of the plaintiff. The court held that in this situation, the interference with enjoyment was a substantial one. Thus, giving the plaintiff a valid right of action under private nuisance.
2. The conduct of the defendant is unreasonable in the prevailing circumstance: in order to determine this condition, the following has to be taken into consideration:
Summarily, a public nuisance is primarily a crime while a private nuisance is a tort. A public nuisance may give rise to an action in tort where the claimant has suffered special damages. The commonest example being an interference with the highway. A private nuisance, on the other hand, is a tort that deals between adjacent landowners and it involves drawing a balance between the right of one person to use his land whichever way he chooses and the right of his neighbour not to jeopardized or interfere with.
