⦿ CASE SUMMARY OF:
M.K.O. Abiola v. Felix O. Ijoma (1970) – HC
⦿ LITE HOLDING
Once nuisance is proved, the Plaintiff is entitled to damages.
⦿AREA OF LAW
Law of Tort
- Law of Tort.
Felix O. Ijoma
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE PLAINTIFF
- FOR THE DEFENDANT
⦿ FACT (as relating to the issues)
The plaintiff in this action is a Chartered Accountant and he lives with his family at 7 Shofidiya Close, Surulere. The defendant owns and occupies the adjoining property at 8, Shofidiya Close, Surulere. The two houses are situate in an area in the suburb of Lagos which is zoned for residential purposes only. The defendant is a pharmacist by profession and he keeps a poultry at the back of his house as a pastime.
When the defendant first introduced this large quantity of chickens into the house, the plaintiff said that he protested to him that it would cause him great offence; but the defendant assured him to the contrary. As time went on, he (the plaintiff) met the defendant to complain that his comfort is being disturbed as a result of the nuisance created by the keeping of the poultry so close to his dwelling house; and because the defendant took no action, he has to institute these proceedings claiming an injunction to restrain the defendant’s acts of nuisance and damages.
The claim is broadly put on three bases: (1) Excessive noise made by the chickens in the early hours of the morning between 4.30 am and 5 am, which prevents the plaintiff from having a good sleep; (2) Odious smells emanating from the same chicken pens as a result of the excreta or droppings in the poultry; and (3) Rats, flies and fleas escaping from the poultry into the house and disturbing his comfort and impairing his health.
- Whether poultry keeping in this part of Surulere, and indeed, in other parts of Lagos, such as Apapa and Ikoyi is a statutory nuisance within the provisions of the Public Health Act?
⦿ RESOLUTION OF ISSUE(S)
- ISSUE 1 WAS RESOLVED IN FAVOUR OF THE PLAINTIFF BUT AGAINST THE DEFENDANT.
i. There is no dispute, however, that the defendant started off with 400 chickens which he said the plaintiff helped him in obtaining. As there was no evidence of any pestilence which could have destroyed them, I am inclined to think that the defendant had some 400 chickens in his pens at the material time. The plaintiff’s evidence continued that the noise increases as the chickens grew older. The defendant himself admitted that these chickens do make noise, but he said that it is not excessive and that they only make noise when they are hungry or being fed. I accept the evidence of the plaintiff that these chickens do make noise at the early hours of the mornings, and when some 400 chickens do join together to click or make noise about the same time and at this particular time of the night, it is bound to be excessive and to disturb the peace of a neighbour who is barely 5ft. from their pens. After all, the main object of living in a house is to have a room with a bed in it where one can sleep at night. Night and up to the early hours of the morning is the time when the ordinary man takes his rest. No real complaint is made by the plaintiff of noise being made in the day time, although there was some evidence that the chicks also make noise in the day. It seems to me that noise made by the chickens at these hours of the night are more than triviality and the plaintiff is justified if he complains. I do not accept that the plaintiff is unduly sensitive for the defendant himself admitted that the portion of his house wherein he dwells is further away from the poultry than the additional building of the plaintiff wherein he once occupied.
ii. I now deal with the question of smells. On this the plaintiff also testified that the smells coming out of the poultry are so nauseating that he has to feed outside at times. He called witnesses, not neighbours though, who called socially and otherwise at his house and sensed the smells. Some of the witnesses went further to say that they had to stop visiting the plaintiff because of the smells, and as a result of this, some business deals had to be missed. The evidence of Dr Daniel, a Medical Officer of the Lagos City Council is that on visiting the poultry of the defendant on the 5th May, 1970, he found dead fowls in it and they gave out bad odour as well as the excreta of the chickens. This happened in the day time, and one can well imagine the intensity of the odour in the night depending on the direction of the winds. The witness continued by saying that he moved over to the plaintiff’s house and from there he smelt the odour which he described as unbearable.
iii. There can be no doubt, however, that droppings from chickens do smell when left for awhile. Although the defendant claims to keep the poultry tidy, but not smell proof, it is weekly that the droppings are cleared by his labourers. These droppings or excreta will undoubtedly give out bad smells since they are not cleared up immediately and a person such as the plaintiff who is close to the poultry will sense it more than the defendant unless when the latter pays his regular visits to the poultry to satisfy his tastes. He has said that he loves to watch the chickens grow or lay eggs and in that circumstance he must be less sensitive to bad odour from the pens than an ordinary person. I do not believe that the plaintiff is being fanciful in all his complaints of excessive noise and smells and they are, in my judgment, more than trifling inconvenience that an ordinary person living in that part of Surulere which is a residential area can be called upon to bear. I accept the plaintiff’s evidence that bad smells came out of the defendant’s poultry.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Dosunmu J.
Having regard to all the circumstances, I will grant the injunction as sought in the writ. But I wish to add that I will not regard it as a breach of this injunction without much more evidence if the defendant removes the pens which he has erected close to the boundary wall to the far end of the property on the opposite side. The injunction will also be suspended for 2 weeks subject to the defendant taking active steps to reduce the nuisance. There will, therefore, be judgment for the plaintiff for an injunction as sought in the writ and £100 damages with costs fixed at 70 guineas cost.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Veale, J., puts it in Halsey v. Esso Petroleum Co. Limited, (1961) 2 A.E.R. at p. 151: “This is not necessarily the same as the standard which the plaintiff chooses to set up for himself. It is the standard of the ordinary man, and the ordinary man, who may well like peace and quiet, will not complain for instance of the noise of traffic if he chooses to live in the main street of an urban centre, nor of the reasonable noises of industry if he chooses to live alongside a factory.”
As Veale, J., said in Halsey’s case (supra) at page 160: “One, but only one, of these principles is that the court is not a tribunal for legalizing wrongful acts by an award of damages.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In the pleadings there is also an averment that the plaintiff’s house has been rendered uninhabitable. It is sufficient, however, to say that there is no satisfactory evidence given in regard to this, and no claim for any loss in value has been advanced in respect of the property. In any case it is clear from the evidence that the plaintiff and his family are still very well inhabiting the building with the new additions that were made thereto. – Dosunmu, J. Abiola v. Ijoma (1970)
In any organised society every one must put up with a certain amount of discomfort and annoyance from the activities of his neighbours; and in this case, I have to strike a fair and reasonable balance between the defendant who likes to keep a poultry for his pleasure in his house and a neighbour who is entitled to the undisturbed enjoyment of his property. – Dosunmu, J. Abiola v. Ijoma (1970)
I now deal with the question of flies, rats and fleas. It is the case of the plaintiff that the existence of the poultry near to his house attracts an unusual population of flies and they cross from the poultry into his house. One or two of his witnesses including a Medical Officer testified to the great number of flies discovered in the plaintiff’s house and some determined efforts were made to link the stomach complaints which the plaintiff and his family made to their Doctor as arising from the visitation of the flies and rats. Plaintiff’s witness, Dr Sogbetun testified that he treated the plaintiff for sleeplessness and family for dysentery, and this latter ailment is caused by eating or drinking anything contaminated by disease carrying agents such as flies and rats are. Even the defendant’s witness, Dr Ayaji, agreed that flies are disease carrying agents, although he disagreed that bad smells can cause dysentery. The question here is whether it has been satisfactorily proved that they are the rats and flies from the defendant’s poultry that infested the food eaten by the plaintiff and his children and therefore affected them with dysentery. As the defendant’s Counsel correctly pointed out, flies do abound everywhere, and unless they are tracked down, it is not easy to say that a particular group of flies originate from a particular source. I have received no evidence that flies located in the defendant’s poultry eventually found their way into the plaintiff’s house or that a group of fleas moved particularly across the border into the plaintiff’s room to disturb his sleep. I realise that the plaintiff said he saw rats creeping from the walls into his house but he could not say from where the rats started their journey. The evidence that there were no rats before the erection of the poultry nearby does not impress me. How large is the population of the flies which the plaintiff spoke of, I do not know. What number of rats invaded him from the defendant’s poultry was not proved in evidence. I realise how difficult it is to prove all these things, but in the absence of satisfactory evidence on these points I find it difficult to say that nuisance has been established on this head. I do not say that the plaintiff and his children never suffered from dysentery, but I can say that it has not been proved that they are the rats and flies that come from the defendant’s poultry that give them this sickness. Surely, it has not been suggested that it is the noise and smells from the adjoining poultry that caused the dysentery. In my view, therefore, the plaintiff has made a good case under the heads of smells and noise only and the defendant is liable to him. – Dosunmu, J. Abiola v. Ijoma (1970)
Nevertheless, the plaintiff is entitled to damages and the fact that he suffers no ill health as a result of the nuisance is immaterial. – Dosunmu, J. Abiola v. Ijoma (1970)