⦿ CASE SUMMARY OF:
Daniel Ifejika v. Veronica Abiana Oputa (substituted for Agnes Mensah (deceased) (2001) – CA
⦿ LITE HOLDING
Nuisance is not a personal action, and hence can survive the deceased.
⦿AREA OF LAW
– Law of Torts.
– Personal action.
– In rem.
Veronica Abiana Oputa (Substituted for Agnes Mensah (deceased)
(2001) JELR 51162 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This is an appeal against a ruling of the High Court of Anambra State of Nigeria holden at Onitsha, Coram Keazor, J. in suit No.0/522/95, delivered on 18th November, 1999, wherein he granted the application of Veronica Abiana Oputa and substituted her as the plaintiff in place of her late mother, Agnes Mensah, now deceased, who was the plaintiff in the said suit with no order as to costs.
In the suit of the original plaintiff (Agnes Mensah) at the court below, the claim against Daniel Ifejika, then the defendant (but now the appellant) was as follows: “19. Wherefore plaintiff claims: Declaration that the defendant is not entitled to maintain the borehole in his premises where same has been sited as the vibration and noise emanating therefrom constituted nuisance to the plaintiff’s occupation and use of her premises. An injunction to restrain the defendant by himself, his servants or agents or otherwise howsoever from causing nuisance by noise or vibration to come into and about the plaintiff’s said premises during normal working hours and/or resting on weekdays and on weekends. N50,000.00 ( fifty thousand naira) damages for nuisance.”
Pleadings were duly ordered and filed in the case, and issues joined, and as a matter of fact, hearing commenced, and proceeded until plaintiff closed her case, after which she died at the ripe age of 90 years. Her daughter, by name Veronica Abiana Oputa, (i.e. the present respondent) therefore brought an application on notice, for her to substitute her late mother as the plaintiff in the action, so that the suit could continue to conclusion as required under order 13 rules 1(1), 2 and 5 of the High Court Rules of Anambra State, 1988.
However, the said application was vigorously opposed by learned counsel for the defendant, (now appellant), who filed no counter-affidavit in his opposition but opposed only on law.
The arguments of learned counsel for defence may be summarised as follows: “(i) The cause of action in the suit died with the plaintiff. (ii) The cause of action in this suit being nuisance founded in tort cannot survive the victim of the wrong, but dies with her. At the end of all the arguments, the learned trial Judge, Keazor, J. came out with a 3 1/2 (three and a half) – page considered ruling in which he overruled the objection of learned defence counsel and granted the application for substitution of the deceased plaintiff by her daughter, the applicant.
The defendant being dissatisfied with that ruling has now appealed to this court
Whether Veronica Abiana Oputa can in law be allowed to substitute the plaintiff on record who is deceased in the circumstances of this case.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. On the totality of the foregoing, it can now be said without fear of contradiction that “nuisance” is not a personal action. It should also be noted that the case of Mbadinuju v. Ezuka (supra) decided by the Supreme Court, emanated from Anambra State. In all the cases noted above “personal actions” have been listed to include only the following:- defamation, seduction Inducing one spouse to leave or remain apart from the other, claims for damages on the ground of adultery. These are personal actions which do not survive the parties, and nuisance is not one of them.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
U.T.B. (Nig) Ltd. v. Ozoemena (2001) 7 NWLR (Pt.713) 718 at 733 – in which this court, per Fabiyi, JCA, in the lead judgment gave the definition of nuisance as follows: “Nuisance takes place when physical injury is inflicted on the plaintiff’s property or that the ordinary use of same is materially interfered with or impaired. It is that activity which arises for unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to the right of another, such that the law will presume resulting damage. Whether or not anything is nuisance is to be determined not merely by an abstract consideration of the thing itself, but with reference to the locality, the duration and all the circumstances.”
Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535, per Onu, JSC at page 565 H, summarised under ratio 6 as follows: “An action for trespass to land is not such a strictly personal cause of action as to abate on the death of the deceased plaintiff since a trespass to land committed during deceased’s lifetime is an injury to the estate of the deceased, the cause of action therefore survives his death. (Inua v. Nta (1961) ALL NLR 600.)”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
What is now being disputed is whether the action of respondent in nuisance was a personal action or an action “in rem”. If it was a personal action, then it must abate, and “die with the person.” But if it was not a personal action, then it cannot abate. It must survive the original plaintiff and be inheritable by whoever succeeds to her estate. – Akpabio, JCA. Ifejika v. Oputa (2001)