N.B. This article is particular to Nigeria.
Nuisance in Torts
Nuisance in a layman’s parlance is any annoying activity perpetrated by another party. However, the tort of nuisance possesses a stricter and narrower meaning than this.
In Tort, Nuisance can be said as the ‘unlawful’ interference with the enjoyment of public bliss, or of land by an occupier. Hence, not all annoying occurrence is actionable in Tort as Nuisance. Nuisance in Tort is usually unlawful, but not always.
According to Clerk and Lindsell, Nuisance is an act or omission which is an interference with or annoyance to a person in the exercise or enjoyment of:
- a right belonging to him as a member of the public, when it is public nuisance;
- his ownership or occupation of land or some easement, profit or other rights used or enjoyed in connection with land, when it is a private nuisance.
This definition by Clerk and Lindsell has been given judicial credence in the Supreme Court case of IPADEOLA & ANOR. v. OSHOWOLE. (1987) LPELR-1531(SC). However, the court also noted, in line with the words of the authors, that, “An actionable nuisance is incapable of exact definition and it may overlap with some other heading of liability in tort such as negligence or the rule in Rylands v. Fletcher.”
Going forward, Nuisance can either be Public or Private.
In the case of ADEDIRAN & ANOR v. INTERLAND TRANSPORT LTD (1991) LPELR-88(SC), the Supreme Court held that, “Nuisance is an act of commission tending to interfere with, disturb or annoy a person or persons in the exercise or enjoyment of a right belonging to that person or persons; if the person whose right is so infringed is an individual, the nuisance is a private one, but when it affects the public or a class of the public, it is then a public nuisance, whereas the private nuisance is within the competence of the victim to prosecute civilly, the public nuisance is a criminal matter for prosecution by the Attorney-General.”
This aforementioned holding on ‘What constitutes nuisance’ by Per SALIHU MODIBBO ALFA BELGORE, JSC, has shed light on a lot of what would be said below.
See also: Defamation in Torts
A Public Nuisance is committed when an act that affect the general public or a section of it is carried on. In other words, a Public Nuisance interferes with the enjoyment of ‘orderliness’ by the general public.
This is the case, for example, when a Factory emits fumes that affects the entire neighborhood. Or when an unlawful structure is erected on a public highway, causing obstruction.
Public nuisance is a crime. And it is actionable only by the Attorney-General, except when there is ‘particular damages’ on an individual.
An individual can bring an action to court against a public nuisance, when he has suffered ‘particular damages’ by the interference. This ‘particular damages’ must be such that is over and beyond the ordinary damages suffered by other members of the society.
For example, in the case of Savage v. Akinrinmade (1964) L.L.R. 238, the defendant’s obstructing of a public street interfered with the access of staff, parents, and pupils to the plaintiff’s school. In this case, particular damage was established.
However, in the case of Amos v. Shell-B.P. (Nigeria) Ltd. (1974) E.C.S.L.R. 486, the defendants constructed a temporary dam across a public navigable creek, interfering with the order of the whole community. In an action by the whole community of persons, Holden C.J. held that the action must fail.
The action above might have succeeded, if brought by just one individual, who proves substantial ‘particular damage’ suffered as a result of the actions of the defendants over that suffered by others.
Needful to mention that under the Common Law, any individual that intends to bring an action under public nuisance must obtain the consent of the Attorney General. Such a restriction is now void by virtue of Section 6(6)(b) of the 1979 Constitution, which is the same Section 6(6)(b) of the 1999 Constitution.
Private nuisance is a substantial interference with the enjoyment of land by the owner or occupier of such land, as a result of the actions of another.
Private nuisance, unlike Public nuisance, is designed to protect the interest of owners or occupiers of land from any form of impediment to the enjoyment of their land that may arise as a result of another party’s substantial interference.
From IPADEOLA & ANOR. v. OSHOWOLE (SUPRA), Per KAYODE ESO, JSC, held that, “ … it is certainly a private nuisance, if there is interference with some easement or profit or any other right accruing to a person or his land.”
See also: Trespass to Land
Categories of Private Nuisance
Private nuisance may be classified into three categories, namely:
- Physical injury to plaintiff’s property: e.g., where the plaintiff’s farm is affected by the fumes from the defendant’s factory.
- Substantial Interference with the plaintiff’s use and enjoyment of his land: for example, when the loud sound of machines emanating from the defendant’s factory can be heard in the plaintiff’s residence.
- Interreference with easements and profits, e.g., where the defendant wrongfully obstructs the plaintiff’s right of way or right to light.
Distinctions between Public and Private Nuisance
Flownig from the foregoing, let us now consider some differences between Public and Private Nuisance.
- A public nuisance affects the public generally, while a private nuisance affects a party privately.
- Public nuisance is a crime, and a tort when particular damage is proved by an individual. However, private nuisance is solely tortious.
- Public nuisance is actionable by the Attorney General, while private nuisance is not.
- To succeed in Private Nuisance, the plaintiff must have an interest in the land. Such an interest is unnecessary in an action arising under public nuisance.
Similarities between Public and Private Nuisance
Having mentioned the distinctions above, it must be noted that the difference between the two forms of nuisance is not watertight.
- There may be occasions where a single action may give rise to liability in both public and private nuisance.
- Also, there must be substantial interference for liability to arise under both categories.
Kodilinye and Aluko: The Nigerian Law of Torts