⦿ CASE SUMMARY OF:
Adediran v. Interland (1991) – SC
⦿ LITE HOLDING
The distinction between public and private nuisance at common law is no longer by virtue of Section 6(6)(b) of the Constitution, 1979 relevant in the exercise of the right to institute actions in Nuisance before our courts. The suit of the plaintiffs is therefore not incompetent on that ground.
⦿AREA OF LAW
- Law of Tort.
- Tort Law.
- Public Nuisance.
- Private Nuisance.
Adediran and akintujoye (as representatives and on behalf OF ALL members of ire-akari housing estate association, Isolo)
Interland transport Ltd
(1991) All N.L.R. 98
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE APPELLANT
- Chief Afe Babalola, SAN.
- FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The facts summarily stated are that plaintiffs are residents of Ire-Akari Housing Estate, Isolo. The residents have formed an association, known as, The Ire-Akari Housing Estate Association.
With leave of the court, plaintiffs brought this action on behalf of themselves and all other members of the Ire-Akari Housing Estate Association, who are the residents of the Ire-Akari Housing Estate at Isolo in Lagos State. The defendant, which is a limited liability company with its registered office at No. 9 Brickfield Road, Ebute-Metta, and the 2nd defendant also a limited liability company, are owners of Plots 351, 352, 353 along Okeho Street, in Block VA of the Ire-Akari Housing Estate, defendants are in the transport business. They own several long trailers. They use their premises in the Estate as their workshop and for parking the trailers.
Consequently there is considerable traffic of these long heavy trailers in the Estate, throughout the day, and for most part of the night. The many drivers employed to drive these vehicles, also park the trailers in the roads of the Estate making the roads virtually impassable.
In many cases they block the access roads to the houses of the residents. The complaint of the residents of the Estate is that the heavy trailers have rendered the roads unsafe for children, destroyed the roads and knocked down electric poles. The disturbing noise made by the drivers in the process of returning to park the vehicles, and taking off early in the morning constitute, in addition to the other inconvenient activities, the nuisance complained of. After several protests to the first defendant, the Residents, who are the plaintiffs brought this action.
After due trial of the claim on the pleadings exchanged by the parties in the High court, the claim against the 2nd defendant was dismissed by Ayorinde, J. The learned trial Judge held the first defendant liable for the tort of nuisance, and awarded N20 000 as general damages.
The court below for the above reasons set aside the judgment of the learned trial Judge with the Order as to costs. The main reason for the judgment, inter alia, was that the claim was in respect of public nuisance for which plaintiffs had no competence to sue. Plaintiffs claim was accordingly struck out.
Plaintiffs have now appealed to this Court.
Ten grounds of appeal were filed and argued.
- Whether the rule of practice and procedure at English common law restricting the right of individuals to sue for damages for public nuisance is in accord with the Constitution of the Federal Republic, 1979.
- Whether there was any evidence in support of the finding that the nuisance complained of is a public nuisance, and if it is, the plaintiffs have shown their right to sue for relief.
- Whether the claim is maintainable by means of action in a representative capacity, and if so whether all the necessary parties are before the Court.
- Whether it was right to allow defendants to raise issues not raised in the court of trial.
- Whether the approved building plan issued in favour of the defendant (Exhibit ‘K’) is valid and effective.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED IN PART; ACTION OF PLAINTIFF STRUCK OUT FOR MISJOINDER OF PARTIES]
- ISSUE 1 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It is well settled that a nuisance whether public or private is an injury which confers on the person affected a right of action. Even where the private individual brings action as the relation of the Attorney-General, he must disclose a right of action on his own account. The Attorney-General is merely a nominal party. In reality it is the civil rights and obligations of the person who has sustained the injury that is in issue. Hence in certain circumstances, even an injury to the public may also constitute injury to the individual. The burden is on the individual to establish his injury. The individual who suffers injury has a right of action because of the cause of action.
ii. The Constitution has vested the courts with the powers for the determination of any question as to the civil rights and obligations between persons, or between government or authority and any person in Nigeria. (See Section 6(6)(b).) Accordingly, where the determination of the civil rights and obligations of a person is in issue, any law which imposes conditions, is inconsistent with the free and unrestrained exercise of that right, is void to the extent of such inconsistency. Thus the restriction imposed at common law on the right of action in public nuisance is inconsistent with the provisions of Section 6(6)(b) of the Constitution, 1979 and to that extent is void.
iii. I think the high constitutional policy involved in Section 6(6)(b) is the removal of the obstacles erected by common law requirements against individuals bringing actions before the court against the government and its institutions, and the preconditions of the requirement of the consent of the Attorney-General. This becomes the more important when the provisions are procedural encrustments designed to protect peculiar social or political situations.
iii. In the circumstances of this country, and considering the social and political considerations preceding it seems obvious that the Constitution did not intend to interpose any substantive precondition to the exercise of a right of action. Hence, except provided by rules of court, where a party can show that his civil rights and obligations are in issue the judicial powers of the constitution for the determination of such civil rights and obligations have been vested in our courts. To observe the common law distinction in instituting actions in tort of nuisance is to invoke and impose a common law provision inconsistent with the Constitution. It is to deprive the citizen of the right of action conferred on him by the Constitution. The modification of the common law by the Constitution is not strange. The common law is not and has never been static. It responds to the local conditions and climes and adapts itself to changing conditions. It nevertheless remains the same. Its strength lies in its resilience. The Court of Appeal was in my opinion wrong to have imported the distinction clearly rejected by the Constitution in instituting actions for nuisance. The Constitution of this country has vested in every person the right to bring actions before the courts for the determination of his civil rights and obligations. No other law can take away the exercise of such right. The common law distinction between public and private nuisance is therefore not here applicable in the institution of actions. It is however still essential in the determination of the right and the injury complained of. The action of the plaintiff is therefore competent.
- ISSUE 2 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Having held that in the institution of actions, the distinction between public and private nuisance in this country has been abolished by the Constitution 1979, the exercise of the right of action for nuisance is no longer based on or determined by the distinction. In the instant case, there was evidence of acts of nuisance before the learned trial Judge. This is sufficient. The action is therefore competent.
- ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The law relating to nuisance is fairly well settled. All those who claim to have been injured by the nuisance complained of must show a substantial injury to them individually arising from the nuisance. The existence of the nuisance per se does not provide a remedy. Hence in the instant case where the injury resulting from the nuisance complained of is generally injury to members of the association, because they are residents of the Estate. This is not the specific and special injury suffered by each resident, party to the action. That has to be established. The association has suffered no injury, and is only a platform on which residents of the association have brought the action. The extraordinary submission that the association should be seen as a unit for the claim is difficult to comprehend. I agree with the submission of the defendants that there is nothing in the pleadings or on the evidence to show that each of the persons represented have a common interest in the action (See Oragbaide v Onitiju (1962) 1 SCNLR 70). It is important to appreciate the fact that although all the injuries complained of arise from the same nuisance complained of, each separate injury is a distinct tort, actionable at the instance of the person who has suffered it.
ii. I hold therefore that plaintiffs were wrong to have prosecuted the claims for nuisance jointly, and the trial Judge was in error to have allowed the action. He was also in error to have awarded damages to an unidentified class of persons in respect of reliefs not specifically made and established. The Court of Appeal was therefore right to hold that the plaintiffs were not properly before the court. I wish to add that it is somewhat of a surprise to conjecture how the learned trial Judge could award damages in a block in respect of injuries neither specifically claimed nor proved before him.
- ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I think the reason given by the court below for giving leave to argue the issue complained of are valid and unassailable. As was pointed out in the judgment, the point as to whether the facts reveal private or public nuisance is one which involves at the same time the issue of the competence of the plaintiffs to institute the action at all. This is a point which if there is evidence on record in support, and there definitely was, could be taken at any stage of the proceedings. I agree with the respondents that the court below was not in any error to have taken the points complained of.
- ISSUE 5 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. I agree entirely with the submission of learned Counsel to the plaintiff that Exhibit ‘K’ was not approved as a licence to commit nuisance. Accordingly the approval of Exhibit ‘K’ for commercial purposes though inconsistent with the purposes of Exhibit ‘A’ which is residential is valid. However, Exhibit ‘K’ is not a defence to the nuisance established. (See L.C.C. v Olutimehin (1969) 1 All NLR 403 at 412). In view of the reasons in respect of issue 5, I do not consider it necessary to consider the last issue in the determination of this appeal.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Ransome-Kuti v. A-G for the Federation (1985) 2 NWLR (Part 6) 211 at page 237, Eso, JSC, said:- “Happily for the country, but this does not affect the instant case, Section 6 of the Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism.”
In Nuncaton Local Board v. General Sewage Co (1875) LR. 20 Eqr. 127 at page 133 Sir James Bacon V-C, said: “The day may possibly come – whether it will or not I do not say – when the question whether a corporation created by statute to discharge such duties as a local board of health are created to fulfil, may or may not file a bill to restrain the infringement of a public right, with or without the Attorney-General, will have to be decided.”
In the case of A-G v. Independent Broadcasting Authority (1973) 1 All ER 689 at page 698, where he said:- “In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizens of this country; so that they can see that those great powers and influence are exercised in accordance with law. I would not restrict the circumstances in which an individual may be held to have sufficient interest.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Although the object of the rule as to joinder of parties is to prevent multiplicity of actions arising from the same transaction, or the same series of transactions, the rule is also designed to facilitate the decision of the same question of law arising from the same transaction. The rule is not meant to clothe persons with right to sue in respect of claims in which they do not have a particular or special interest or where they have suffered no special damage. – Karibi-Whyte, JSC. Adediran v. Interland (1991)
A public nuisance is one which inflicts damage, injury or inconvenience to the generality of the population, or upon all of a class who come within its ambit. A private individual has a right of action for public nuisance if he can establish that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and that the particular damage is direct and substantial. – Karibi-Whyte, JSC. Adediran v. Interland (1991)
The general rule is that a private individual can only take proceedings in his own name in respect of an injury sustained from a public nuisance, where he has suffered some particular, direct and substantial damage over and above those sustained by the public at large; or when the interference with the public right involves a violation of some private right of his own, or threat of damage to his property. He can also exercise such a right of action if conferred on him by statute. In any case the nuisance must be a cause of the injury. – Karibi-Whyte, JSC. Adediran v. Interland (1991)
A short excursion into the history of the interposition of the Attorney-General in actions at common law will explain some of the misconceptions of the rationale for the rule. The interposition of the Attorney-General was not to rob the person injured by the nuisance of his right of action or the recourse to justice. Rather it was to protect the generality of the population where their interest is involved. The origin of the Attorney-General’s emergence in actions including suits for public nuisance is traceable to the exercise of the equity jurisdiction of chancery courts to protect the King’s interest. In such cases, the Attorney-General was competent to sue at the relation of a private plaintiff, the relator being responsible for the cost of the action and receiving the benefit of the award. We are told in books of authority that in Lord Hardwicke’s time, an (sic) information by the Attorney-General was the proper procedure for redress unless an individual had suffered particular damage by reason of the nuisance, in which case the intervention is unnecessary. The relator actions in equity was founded on the concept of the crown as parens patriae and gave birth to the types of actions initiated by the Attorney-General in matters relating to the public welfare. The right of the individual to bring actions without joining the Attorney-General depended upon whether it is his own legal interests more than those of the public in general that are affected. There now appears to be a general relaxation in the rigidity in application of the rule. Although the Attorney-General may still bring an action, it has been stated in A-G v Garner (1907) 2 KB 480, that the rights sought to be protected, “must be rights of the community in general and nor rights of a limited portion in question, the inhabitants of a parish have representatives who can bring the action.” Hence a local authority with appropriate statutory powers can exercise such powers to bring action in its name. – Karibi-Whyte, JSC. Adediran v. Interland (1991)
The issue is that nuisance has been committed from the premises occupied by the defendant. We have already in this judgment discussed the principles of the law of Nuisance. There is yet another basic principle which concerns the conduct and liability of the defendant. It is couched in the Latin maxim, sic utere tuo ut alienum non laedas, which translated means, “so use your own property as not to injure your neighbours.” This is the basic doctrine of the law of Nuisance. The lawfulness or legality of the occupation of the property will neither exonerate nor ameliorate nuisance committed by the use of the property. – Karibi-Whyte, JSC. Adediran v. Interland (1991)
It is clear from this definition that a private nuisance in a secluded area which affects a few people can amount to public nuisance if it occurs in a more open area, like a market or railway station, or motor park. In this respect the distinction between a public nuisance and private nuisance is only relative. The act of parking a lorry on a road at a housing estate is capable of giving rise to both public and private nuisance, for if it denies the owner of a house entrance into his house, that is a nuisance that is peculiar to him. It is he that enters the house and not the members of the public and the number of persons that is sufficient to constitute the public at large is question of fact and not law. (See A-G v P.Y.A. Quarries Ltd (supra) at page 184; (1957) 1 All ER 894 at page 902.) On the other hand if the lorries were parked on the highway, that would take the nuisance out of the realm of being private and it would become public. – Uwais, JSC. Adediran v. Interland (1991)
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. – Belgore, JSC. Adediran v. Interland (1991)