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INTERLAND TRANSPORT LIMITED
IN THE SUPREME COURT OF NIGERIA
FRIDAY, 13TH DECEMBER. 1991
 9 NWLR (PT. 214) 155
BEFORE THEIR LORDSHIPS
MUHAMMADU LAWAL UWAIS. J.S.C.
ADOLPHUS GODWIN KARIBI-WHYTE. J.S.C.
SALIHU MODIBBO ALFA BELGORE,
ABUBAKAR BASHIR WALI
INTERLAND TRANSPORT LIMITED
Chief Afe Babalola S.A.N. (with him, Akin Olujimi, A. Olawoye, O.J. Fabunmi, T Oyewole, T. Ivory, U. Akpan) – for the appellants
Mrs. O.M. Ayeni – for the respondent
High Court of Lagos State [Ayorinde, J., Presiding]
TORT AND PERSONAL INJURY LAW:- Nuisance – Meaning – Categories – Distinction between public and private nuisance – Whether distinction has been abolished by the Constitution 1979 with the effect that the exercise of the right of action for nuisance is no longer based on or determined by the distinction – Whether evidence of acts of nuisance is sufficient to ground such an action
TORT AND PERSONAL INJURY LAW:- Nuisance – The common law distinction between public and private nuisance – Whether not applicable in the institution of actions in Nigeria – Whether still essential in the determination of the right and the injury complained of
TORT AND PERSONAL INJURY LAW- NUISANCE:- Acts capable of giving rise to both public and private nuisance – Relevant considerations – Whether such acts confers right on both the individual affected by such nuisance and the Attorney-General to sue
TORT AND PERSONAL INJURY LAW:- Nuisance at common law – When a private individual can take proceedings in his own name in respect of an injury sustained from a public nuisance – Relevant considerations – Whether such right can also arise by way of statute – Effect of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria
TORT AND PERSONAL INJURY LAW:- Nuisance at common law – Relator actions – Meaning of – Whether allows private individual who has sustained some special injury, and consequently has a valid right of action on his own account, to join the proceedings of the Attorney-General and claims in respect of that injury – When a local authority can exercise such powers to bring action in its name
TORT AND PERSONAL INJURY LAW:– Tort action brought in a representative capacity – Mandatory requirements – Need for (i) there to be a common interest; (ii) a common grievance; and (iii) and for the relief claimed to be beneficial to all – Whether rule applies only where the representative as well as those represented have the same interest in the action before the court
TORT AND PERSONAL INJURY LAW:– Tort action brought in a representative capacity – Need for all those who claimed to have been injured by the nuisance complained of to show a substantial injury to them individually arising from the nuisance – Whether the existence of the nuisance per se does not provide a remedy
TORT AND PERSONAL INJURY LAW:– Tort action brought in a representative capacity by an association – Where injury resulting from the nuisance complained of is generally injury to members of the association because they are residents of the Estate – Whether specific and special injury suffered by each resident needed to be pleaded and established – Effect of failure thereto
TORT AND PERSONAL INJURY LAW:– Tort of nuisance – Representative action – Proof of common interest – Relevant considerations – Where pleadings or evidence does not show that each of the persons represented have a common interest in the action – Duty of court thereto
TORT AND PERSONAL INJURY LAW:- Nuisance – Where brought in representative capacity – Where the grievance of individuals is separate and distinct even though they have a common interest – Effect – Implication for multiplicity of actions – Attitude of court thereto
TORT AND PERSONAL INJURY LAW:– Basic principle which concerns the conduct and liability of the defendant in nuisance arising use of property – Latin maxim sic utere tuo ut alienum non laedas – Whether the lawfulness or legality of the occupation of the property will neither exonerate nor ameliorate nuisance committed by the use of the property
CHILDREN AND WOMEN LAW:- Children and Safety/Environment – Whether the presence of heavy noisy trailers plying the roads constitute an hazard to children and nuisance to the environment – Relevant considerations
CONSTITUTIONAL AND PUBLIC LAW:- Section 6(6)(b) of the 1999 Constitution – Institution of actions – Where there are preliminary hurdles to same – Whether deemed removed under the 1999 Constitution
CONSTITUTIONAL AND PUBLIC LAW – SUPREMACY:- The Constitution as the basic law of Nigeria – Section 1(1) which makes the Constitution supreme – Bindingness of its provisions on all persons and authorities throughout the country
CONSTITUTIONAL AND PUBLIC LAW:- Existing laws – Section 274(4) (iii)(b) of the Constitution – Section 15 of the Constitution (Suspension and Modification) Decree No. 1 of 1984, as amended by Decree No.17 of 1985 – Provision that all existing laws shall have effect with such modifications as may be necessary to bring them into conformity with the Constitution as amended, suspended or modified – Whether applies to both common law rules and principles applicable in Nigeria – Implication for common law rules as to nuisance
CONSTITUTIONAL AND PUBLIC LAW:- Modification of the common law by the Constitution – Justification – Character of common law – Whether the common law distinction between public and private nuisance is not applicable in the institution of actions in Nigeria
REAL ESTATE/LAND LAW – ESTATE ASSOCIATION:- Whether can bring and maintain a claim in tort of nuisance – Whether estate capable of suffering any injury or is a proper platform on which residents of the estate association may bring an action – Whether estate association can be seen as a unit for the claim in substitution for the legal requirement that each separate member plead and establish his claim
REAL ESTATE/LAND LAW – LAYOUT/BUILDING PLAN:- Two approved and valid building plan in respect of plots of land – Where one plan is meant to be controlled by the other – Whether cannot stand if it contravenes the controlling one – whether any approval not based on the controlling one amounts to a fraud
REAL ESTATE/LAND LAW – ESTATE ASSOCIATION:- Legal capacity to maintain a suit in nuisance as a representative of its members – Validity – Need to separate and prove injury suffered by members of the association from that of the estate association – How treated
REAL ESTATE/LAND LAW – MANAGEMENT AND PLANNING:– Quality of life in a neighbourhood estate – Defence of common and individual interests of members of a neighbourhood Estate – Whether can found claim in nuisance by way of representative action – Legal hurdles that must be satisfied – Where action is based on private tort – Need to bring same in individual capacities of members and prove particulars of nuisance suffered by each individual complainant – Effect of failure thereto
ENVIRONMENTAL LAW – BUILDING/TOWN PLANNING AND NUISANCE LAWS:- Residential Estate – Layout plan covering same – Where designated residential and constitutes controlling plan for the whole estate – Individual building plans of plots within estate – Validity of granting approval to buildings plans setting up commercial operations within the same estate –Whether will amount to a fraud on the control layout plan – Where operations in commercial buildings detracts from residential quality of neighbourhood – How treated
ENVIRONMENTAL LAW – ENVIRONMENTAL POLLUTION:- Use of property in a way as to afflict a residential neighbourhood with unreasonable levels of noise, dust, presence of undesirable elements, damage to road, telephone poles and water , and Pollution via waste engine oil which are discharged into gutter – Nature of nuisance constituted – Liability – on whom lies
TRANSPORTATION AND LOGISTICS LAW:- Operations of transportation business and nuisance – Keeping a workshop and a fleet of various motor vehicles, light and heavy – Where business premises located within residential estate – Validity of plan – Whether plan can be valid but mode of conducting the business be deemed a nuisance – Relevant considerations
HEALTHCARE AND LAW:- Proof of nuisance arising from acts deemed hazardous to health of residents of an estate – Nature of evidence required to found same
PRACTICE AND PROCEDURE – ACTION – REPRESENTATIVE ACTION:- Appropriateness of action brought in a representative capacity pursuant to Order 13 rule 14 of the High Court Rules of Lagos State 1972 – Mandatory requirements
PRACTICE AND PROCEDURE – ACTION:- Joinder of parties – Objectives – Whether 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
PRACTICE AND PROCEDURE – ACTION – REPRESENTATIVE ACTION:- Order 13 rule 14, – What needs to be proved – Need for the persons being represented and the persons representing them to have the same interest in the cause or matter and for them to have must a common grievance
PRACTICE AND PROCEDURE – ACTION:- Sending of letter or authority to Court after case is adjourned for judgment – Propriety – Whether accords with practice of the court – Restriction – Whether only authorities which relate to the submissions made in the course of argument can be admitted after adjournment for judgment
PRACTICE AND PROCEDURE – ACTION – MISJOINDR OF PARTIES:- When action of plaintiffs will be struck out for misjoinder of the parties – Consequential orders
PRACTICE AND PROCEDURE – ACTION:- Institution of actions – Tort of Nuisance – Whether requires legal distinction between private and public nuisance – Whether old common law rules based on public and private nuisance no longer applies in the institution of an action as to nuisance in Nigeria – Effect of Section 6(6)(b)
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- High Court- Section 239 of the 1979 Constitution – Need for a High Court in exercising its jurisdiction to follow the procedure or rules provided for it – Effect of failure thereto
PRACTICE AND PROCEDURE – JURISDICTION:- Point as to whether a set of facts which 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 – Where there is evidence on record in support – Whether matter which could be raised and/or taken at any stage of the proceedings
WORDS AND PHRASES – LATIN MAXIM:- sic utere tuo ut alienum non laedas – Meaning of
KARIBI-WHYTE, J.S.C. (Delivering the Lead Judgment):
On the 3rd February, 1986, the Court of Appeal, Lagos Division, by majority of 2:1, set aside the judgment of Ayorinde, J., of the High Court of Lagos State delivered on the 21st September, 1982. This is an appeal by the plaintiffs against the judgment of the Court of Appeal referred to.
The facts of this case which will be stated immediately hereafter, are quite simple and brief. The issues of law involved therein are however not merely of undoubted constitutional relevance and significance, they are also of far reaching importance in the application of the received rules of the common law of England. 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 workshops 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 1st defendant, the resident, who are the plaintiffs brought this action.
The claim in the amended statement of claim dated 8th July, 1981 reads:
(a) an injunction to restrain the defendants by themselves or by their directors, officers, servants or agents or otherwise whosoever, from using the said plot of land or any other plot of land situated in the Estate for transport business or any other commercial purpose and from causing, permitting or suffering large, long or heavy trailers or any commercial vehicle to be brought into the Estate or be driven through, into or from the Estate.
(b) N10,000 being special damages caused to electric and telephone poles and wires, water pipes, culverts, roads and various other infrastructures in the Estate.
(c) N40,000 damages for loss and damage caused the plaintiffs by nuisance due to noise, vibrations, dust and obstruction of the road in the Estate.
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 1st defendant liable for the tort of nuisance, and awarded N20,000 as general damages. N30,000 was also awarded in respect of special damages. Perpetual injunction was granted restraining the defendants, by themselves or their directors, officers, servants, or agents from using the said plots of land in Ire- Akari Housing Estate, Isolo, for transport business or any other industrial purpose. Defendant was also restrained from causing, permitting or suffering large, long or heavy trailers or any such commercial vehicles to be brought into the Estate or to be driven into or from the Estate.
In his considered judgment the learned trial judge found that plaintiffs are members of the Association known as Ire-Akari Housing Estate Association. The action was instituted on behalf of all the members of the Association residents at Ire-Akari Estate.
Chief E.O. Ashamu was the predecessor-in-title of Ikeja Real Estate Company Ltd. The approval Lay-Out exhibit A was taken over by Ikeja Real Estate Company Ltd. The entire approved Lay-Out as confirmed by PW.1 and PW.2 is for dwelling houses or residential houses.
The defendant purchased the 3 plots in the approved Lay-Out exhibit A on which it built offices and workshops where it carries on transport business. Exhibit K produced by the defendant is the plan of the proposed office block and temporary workshop for the defendant.
The learned judge construed the provisions of the Town and Country Planning Law Cap. 133 Laws of Lagos State, vol.7 and the definition of the words (a) dwelling house (b) residential building (c) industrial building and (d) business premises, and held that Exhibit K being inconsistent with exhibit A is a fraud on the approved Lay-Out, Exhibit A. He therefore rejected Exhibit K. With respect to the tort of nuisance, the learned trial judge accepted plaintiffs’ evidence of the movement of long vehicles and trailers at anytime of the day or night, and that they made violent disturbing noises. He also accepted the evidence that the vehicles created unbearable volume of dusts and brought undesirable elements into the Estate. The allegation is that the vehicles damage roads, telephone poles, water pipes and made big potholes on the untamed roads. He also accepted the evidence that the vehicles made excessive noise and that they cause vibration.
The learned judge found that the original approval to use the land was for residential or dwelling houses, and this still stands. But he found that the noise and dust created by the activities of the defendants were excessive and beyond the ordinary for mankind in Ire-Akari Estate.
The learned trial judge found that Ire-Akari Estate is not an Industrial Estate or locality and that it was designed purely for residential purposes, and held that the noise and dust constitute nuisance to the plaintiffs. After recounting the facts, the learned trial judge found that these acts which are continuous constitute substantial discomfort to the plaintiffs and other members of the Association.
The defendant appealed to the Court of Appeal on five grounds of errors of law and of facts. Eight issues for determination were formulated from the five grounds of appeal filed and argued. I reproduce hereunder the issues for determination
Whether a case of nuisance was made out against the appellant and if it was, was it one of private nuisance which could be sued for by the respondent in his own right or of public nuisance;
(2) If it was a case of public nuisance whether it is still the law in Nigeria, particularly in view of the 1979 Constitution, that such an action lies in this case only at the suit of the Attorney-General of Lagos State or at his relation;
(3) Whether all the parties interested in this action are before the court, and, if not whether the court ought to have adjudicated on the matter;
(4) Whether, having regard to the nature of the claim, this is an action in which it is appropriate for the persons interested in the suit to sue through the named plaintiffs as their representatives;
Whether a plaintiff who seeks relief in respect of a nuisance has a duty to establish the case of nuisance complained about notwithstanding that no issues are joined on the point and whether there is a duty on the court to raise it suo motu;
(6) Whether on the facts of this case the plaintiffs on record by themselves and the persons they say that they represent can properly join to claim and be awarded damages as did the learned trial judge;
Whether, if Exhibit K was properly approved as office block, it is a justification for the nuisance complained of; and
(8) Whether there was evidence before the Court of the proprietary interest or occupational rights of the respondents.”
The leading judgment in the court below with which U. Mohammed, J.C.A. agreed, Ademola, J.C.A. dissenting, considered only issues (1), (3), (5) and (7). On the 1st issue, the learned justices of the court below held that the learned trial judge was wrong in holding that the act committed was a private nuisance in respect of which plaintiffs could bring an action. It was held that the main thrust in the plaintiff’s case, is that what was committed, if at all, was public nuisance which can only be sued for by or at the relation of, the Attorney-General of Lagos State.
The learned justices of the Court of Appeal referred to the pleadings of the plaintiffs, the evidence at the trial and the findings of the trial judge and observed that there was nothing personal or peculiar to the plaintiffs as distinct from the generality of the occupants of the Estate. After citing and relying on the definition of the words private and public nuisance in Halsbury’s Laws of England, vol. 28 (3rd edition) p.128, 28,122 and of Public Nuisance by Dennings, L.J. in Attorney-General v P.Y.A. Quarries Ltd. (1957) 2 Q.B. 169, and the provisions of section 234 of the Criminal Code, he came to the conclusion that it cannot be doubted that the respondents and other residents of the Estate will be affected by the nuisance being complained about. They form the public or class or the public in the context of the above definition of public nuisance.
It was held therefore that since not all residents of the Estate were members of the Association, and the nuisance complained of was so widespread, including non-members of the Association, they were therefore of the category of public and not private nuisance. The learned judge was therefore wrong to hold that it was private nuisance.
The learned justices referred to the right to sue in respect of the nuisance. The issue was whether section 6(6) (b) of the Constitution 1979 had altered the common law as to bringing actions in respect of nuisance applicable in this country? Plaintiffs argued that it did, and that the restrictions at common law whereby right of actions in respect of public nuisance could only be exercised by or at the relation of the Attorney-General, had been removed by section 6(6)(b).
Defendant contended that while the distinction of public and private nuisance remained, the right to bring action in respect of public nuisance remain vested in the Attorney-General. Citing and relying on the Locus classicus, of Senator Adesanya v President of the Federal Republic of Nigeria (1981) 1 All N.L.R. (part 1) at p.39, 41, 43, 54, 56 the learned justice argued that section 6(6)(b) was not intended to widen the scope of the matter a person can bring to court by himself. In his view, if by law a suit on public nuisance could only be instituted by the Attorney-General in the light of the hypothesis that the injury, if at all, is one to the public at large for which only the Attorney-General can sue, I do not see how it can be described as the civil rights and obligations of the individual for which that person can use.
It was held that plaintiffs have failed to aver and prove that they suffered any particular direct and substantial damage over and above other members of the community to which they belong, or that any private and exclusive right of theirs statutory or otherwise has been violated. The action was therefore incompetent.
On issue 5, the question was whether the nuisance was private or public having not been pleaded, could be taken at that stage, without leave of the court. Learned justices of the Court of Appeal held that the issue was one in respect of which leave could ex necessitate be granted since the facts before the court permit the argument. Besides, it is an issue which questions the competence of the plaintiff to institute the action at all, which can be taken at any stage of the proceedings provided it is supported by the evidence on the record.
The Court was of the view that these two issues were sufficient to dispose of the matter in favour of the appellants in the court below.
On issue 3, the court below citing and relying on Order 15 rule 4(2) R.S.C. 1985 of England applicable submitted that not all those residents which were affected were before the court. Plaintiffs were bound to bring before the court other residents of the Estate who are entitled to sue having suffered from the same acts of nuisance. Plaintiffs represented only members of the Association. Under the rules, the other residents should with their consent be made co-plaintiffs, or otherwise sued as defendants. Relying on decisions on bringing actions in a representative capacity, the court below still made the distinction between a private and public nuisance and held that plaintiffs had no locus standi. The justices held;
If the nuisance is common to all it is in the area of public nuisance, but if personal to the plaintiff then it is private nuisance. In my view if the plaintiffs or any of them have any right to action which I do not believe that they have, having regard to the subject matter of the suit, I am of the view that they did not rightly come to court by way of representative action…
Issue 7 was whether a proper approval of Exhibit K is a justification for the nuisance complained of. The court below held that since it was not proved that the whole estate was to be a residential area, on which fact the learned trial judge based his conclusion, that the acts complained constituted a nuisance, the judgment cannot stand.
The court below for the above reasons set aside the judgment of the learned trial judge with the Order as to costs. The main reasons for the judgment interalia, 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. Learned Senior Counsel filed briefs of argument which they adopted. As each of the parties have formulated six issues for determination which are not identical, it will be of immense assistance and in the interest of clarity to reproduce the issues
APPELLANTS’ ISSUES FOR DETERMINATION
2.1 The issues arising from the ten grounds of appeal are as follows:
(i) Whether there was any evidence to support the finding of the Court of Appeal that the nuisance established in this case was a public nuisance.
(ii) If the nuisance is a public nuisance whether on the pleadings and evidence, the plaintiffs have now shown their entitlement to sue for relief.
(iii) Whether a common law rule that denies or restrains the right of access to the court is not void having regard to the provision of sections 6 and 33 of the constitution of the Federal Republic of Nigeria, 1979.
(iv) Whether there was justification for allowing the respondents to raise in the lower court issues which were not raised in the High Court.
(v) Whether a claim for damages for public nuisance is outside the category of actions which can be maintained in a representative capacity particularly where joinder of parties is not proper.
(vi) Having regard to the finding of the lower court that there was no appeal by the respondents herein against the findings of fact of the High Court on the issue whether or not there was nuisance, whether it was still open to the Court of Appeal to go into question whether or not Ire-Akari Estate was proved to be a residential estate.
RESPONDENT’S ISSUES FOR DETERMINATION
The defendant submits that the questions for determination in this appeal may be formulated as follows:
Though differently formulated the issues raise the following questions-
The appellant’s issues (i) – (ii) raise the questions of the continued retention in Nigeria of the distinction at common law of bringing actions in respect of public and private nuisance, whether on the pleadings, plaintiffs have shown their entitlement to sue for relief and whether there was evidence to support the finding of a public nuisance.
Issue (iv) relates to the propriety of the defendants raising on appeal and being granted leave to argue issues not raised in the court of trial. Issue (v) raises the question whether a claim for damages for public nuisance can be maintained by means of a representative action. (vi) whether Ire-Akari Estate is a residential estate can be argued when there was no appeal against the finding.
Summarily stated also, the issue 5 formulated by respondents coincide with issues (i), (ii), (iii) of the appellants issue 6, with (iv) of the appellants, issue 1, with issue (ii) of the appellant issue 2, stands alone. Issue 3, covered by issue (iii) of the appellants. Issue 4 of the respondents stands alone. Accordingly it is necessary to reconcile the issues so formulated in order to bring out all the issues in dispute.
The issues differently formulated by the parties could be meaningfully reconciled into the following:
I shall in the judgment adopt the issues so reconciled in this judgment as I have in formulating them taken into consideration all the issues sought to be determined in this appeal.
The first issue which is the 3rd issue by the appellant, and the 5th by the respondent raises the effect of section 6(6) (b) of the Constitution 1979 on the right of action in nuisance. This issue was first raised in the Court below when the defendant’s relying on the distinction in the common law of England between public and private nuisance contended that the facts of this case and the findings of the learned trial judge being in the nature of an inconvenience which are not personal or peculiar to the plaintiffs as distinct from the generality of the occupants of the Estate, are in the class of public nuisance actionable only at the instance of the Attorney-General or by relator action.
Learned counsel to the appellant, Chief Afe Babalola, S.A.N., has argued in his brief of argument, and before us, as was his contention in the court below, that the question is whether a person whose right to enjoyment of his property has been substantially interfered with has a right to seek redress in the court? Learned Senior Counsel referred us to evidence of the degree of interference with the plaintiffs’ right of user and enjoyment of their properties. It was submitted that a right to enjoy or not to enjoy any property raises a question as to the civil rights and obligations of that person. Reliance was placed on Kuti v. A-G. (1985) 2 N. W. L. R. 211.
Learned Senior Counsel argued that interpretation of the decision of this court in Adesanya v. President of the Federal Republic (1981) 1 All N.L.R. (part 1) 39 is not in accord with the ratio decidendi of that case. In Adesanya’s case, the question was not that of his right being involved. Indeed it was that he had no right to interfere. Chief Williams, S.A.N., in his brief of argument invited us to endorse the reasoning and conclusion on this point of Nnaemeka-Agu, J.C.A. (as he then was) which I have already adverted to in this judgment.
It is convenient at this point to consider the 4th issue. That is that the defendants who were the appellants in the court below were not entitled in that court to argue points not raised in the High Court. 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.
I now turn to an issue of immense constitutional significance and juridical importance. It is the contention of the plaintiffs that persons seeking to bring action in nuisance will not be inhibited by the distinction at common law between public and private nuisance. It is therefore not necessary to persuade the Attorney-General to bring a relator action. The provisions of section 6(6)(b) of the Constitution 1979 is relied upon for this submission.
The defendants argue that the distinction in the common law of England between public and private nuisance subsists and remains unaffected by the constitutional provision referred to. Accordingly actions in respect of public nuisance can only be instituted by the Attorney-General by himself, or in his nominal capacity as a relator to those affected.
The tort of nuisance is one of the many common law actions still available in this country. The common law of England which applies in this country, recognises that nuisance may either be a public nuisance or a private nuisance. 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 See Ejowhomu v. Edok-EterLtd. (1986) 5 N.W.L.R. (part 39) 1.
On the other hand a private nuisance is one which interferes with a person’s use and enjoyment of land or some right, such as an easement, connected with land. See Ipadeola v. Oshowole (1987) 3 N.W.L.R. (part 59) 188. The distinction between public and private nuisance is of critical importance at common law because of the consideration of the proper person to initiate proceedings.
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. See Dymond v. Pearce (1972) 1 All E.R. 1142. In all other cases, known as relator actions, proceedings must be brought with the sanction and in the name of the Attorney-General. In this case also the private individual who has sustained some special injury, and consequently has a valid right of action on his own account, joins the proceedings of the Attorney-General and claims in respect of that injury. See A-G v Logan (1891) 2 Q.B. 100; A-G v. St. Ives R.D.C. (1960) 1 Q.B. 312.
Learned counsel to the defendants in this appeal has taken the general English common law position that the action of the plaintiff is incompetent because it is in respect of a public nuisance which requires the consent of the Attorney-General.
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 as the relation of a private plaintiff, the relator being responsible for the costs of the action and receiving the benefit of the award. We are told in books of authority that in Lord Hardwicke’s time, an 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 K.B. 480, that the rights sought to be protected, must be rights of the community in general and not 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.
The basic law of this country is the Constitution of the Federal Republic 1979 which came into force on the 1st October, 1979. Section 1(1) makes the Constitution supreme, and its provisions have binding force on all persons and authorities throughout the country.
It is important to refer to section 15 of the Constitution (Suspension and Modification) Decree No. 1 of 1984, as amended by Decree No.17 of 1985 which provides that all existing laws shall have effect with such modifications as may be necessary to bring them into conformity with the Constitution as amended, suspended or modified.
There is no doubt that the common law of England is a law existing at the coming into force of this Constitution. It is therefore an existing law within the meaning of section 274(4) (iii)(b). Learned counsel to the plaintiffs has submitted that the action of the defendants constitute a nuisance to members represented by them. Defendants contend that since the plaintiffs nowhere alleged that any of them has suffered some particular, direct and substantial damage over and above that sustained by the public at large, the injury is of the nature of a public nuisance. It was wrong for them to have brought the action in their own names. This proposition is consistent with the common law distinction between public and private nuisance.
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 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.
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.
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 entrustments designed to protect peculiar social or political situations.
Referring to a similar obstacle, namely the immunity of the sovereign from suits, in Ransome-Kuti v. A-G for the Federation (1985) 2 N.W L.R. at p. 237, Eso, J.S.C. 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.
The common law has been modified in those cases where Local Authorities have been given statutory authority to take actions in their own names, even in respect of public nuisance without seeking the consent of the Attorney-General.
In Nuneaton Local Board v General Sewage Co. (1875) L. R. 20 Eqr. 127 at p.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.
The doubts of Sir James Bacon in 1875, appears to have been answered by Denning, L.J. in 1973, in the case of A-G v Independent Broadcasting Authority (1973) 1 All E.R. at p.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.”
Here Denning, L.J., M.R. was considering the case of a relator action where a member of the public who has sufficient interest can himself apply to the court itself. This may be where the Attorney-General refuses leave in a proper case, or improperly or unreasonably delays in giving leave; or where his procedure works too slowly. See also R. v. Metropolitan Police Commr. Exparte Blackburn (1968) 1 All E.R. 770 at p.771, Dyson v. A-G (1911) 1 K.B. 410. These are the necessary preconditions to the doing of justice which enables the court to interfere.
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 as 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 torts 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 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.
The complaint in the second issue is whether there was before the learned trial judge any evidence of acts of public nuisance. This issue rests on the consideration of the non-observance by the learned trial judge of the distinction between public and private nuisance at common law. If the distinction was observed plaintiffs could not bring their action except with the consent of the Attorney-General. It is however not the contention of the defendants that there was no evidence to support the tort of nuisance, public or private. For instance, the learned justices of the Court of Appeal had as the reasons for rejecting the finding of the learned trial judge in favour of private nuisance and striking out the actions stated:
“Rather the nuisance complained of, if true, was so widespread and extended to all Estate including non-members of the association. They were therefore of the category of public and not private nuisance.”
This findings is an admission of the existence of the tort of nuisance howbeit public, in respect of which a right of action exists in accordance with the common law as it applies in this country.
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.
The third issue, raises the appropriateness of the action brought in a representative capacity. Learned counsel to the plaintiffs has relied on Order 13 rule 14 of the High Court Rules of Lagos State 1972 for the action which was brought in a representative capacity. It was submitted that all the members of the class represented have a common grievance, and that the relief claimed is beneficial to all.
Learned counsel submitted that the Association should be seen as an entity, the fact that it consists of several individuals did not matter. Once it is established that the reliefs claimed is beneficial to the association the question of how to share and apportion the damages to members of the association did not arise. Learned counsel distinguished Amachree v. Newington 14 W.A.C.A. 97, where several plaintiffs joined together to prosecute the different wrongs done to them. It was submitted that the named parties suffered substantial injury as a result of the nuisance and a misjoinder of parties, which is denied, should not vitiate the action.
Finally, it was submitted that the defendants having not complained against the joinder should be taken as having waived the objection. On the objection by the defendants that not all persons interested have been joined, learned counsel submitted there was no evidence of such persons.
The provision enabling bringing representative action provides:
‘Whether there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the court or a judge sue or be sued, or may be authorised by the court or judge in Chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”
For an action to lie in a representative capacity, learned counsel to the plaintiff has stated the principles correctly and clearly. And this is, that
(i) there must be a common interest
(ii) a common grievance
(iii) and the relief claimed must be beneficial to all.
It is important to observe that the rule applies only where the representative as well as those represented have the same interest in the action before the court.
Learned counsel to plaintiff relies on the nuisance as the common grievance and the common interest required by the rule. The injunction and damages sought he regards as beneficial to all those represented.
It is in this regard learned counsel has misconceived the basis of the right of action. The law relating to nuisance is fairly well settled. All those who claimed 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 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 submissions 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. Onitilu (1962) 1 All N.L.R. 32.
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. See Smith & Ors. v. Cardiff Corporation (1954) 1 OB 210.
Herein, lies the identity between the instant case, and the decision of the West African Court of Appeal of Amachree & Ors. v. Newington (Supra) sought to be distinguished by learned counsel to the plaintiffs. In this case, different torts arising from the same nuisance have been alleged, and claimed in the same action. So in Amachree v. Newington (supra) claims in assault and false imprisonment by different persons arising from the same act were joined in the same action claiming a single sum of money as damages for assault and false imprisonment allegedly committed by the defendants on separate occasions. Each of the persons was held to have a separate cause of action depending upon the damages suffered, and must bring a separate action.
Similarly in the instant case different persons claiming damages resulting from different injuries arising from the same nuisance cannot be joined in the same action. There is no evidence of the injuries sustained by each of the members, or when it was sustained.
Although the object of the rule as to joinder of parties is to prevent multiplicity of action 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. See Onyia v The Governor-in-Council & Ors. (1962) W. N. L. R. 89.
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 judge could award damages in a block in respect of injuries neither specifically claimed nor proved before him.
The other issue before the court is the contention whether the approved building plan Exhibit K in respect of the plots, 351, 352, 353 of the defendant, the premises connected with the commission of the Nuisance is valid. Learned counsel to the plaintiff relied entirely on the finding of the learned trial judge that since Exhibit A tendered by the plaintiff clearly describe the Ire-Akari Estate as a residential Estate, and this is confirmed by PW.1 and PW.2 in their evidence at the trial, Exhibit K, tendered by the defendant as the approved plan in respect of plots 351, 352, 353 which describes the purposes as commercial must have been a fraud on Exhibit A. He said,
Exhibit K must be governed and controlled by Exhibit A. PW 1 & PW.2 were never asked any question about Exhibit K. it was never shown to them. I have two sets of approvals which are self-contradictory. If Exhibit A is to control Exhibit K, Exhibit K cannot stand if it contravenes Exhibit A, because any purported approval not based on Exhibit A will amount to a fraud on Exhibit A and ought to have been avoided or ignored.
The elaborate submissions of the learned counsel for the defendants on the validity of Exhibit K, is aimed at showing that defendant was occupying the premises from which the nuisance was committed with an approved plan. The premises was used for the purposes in respect of which they were approved. As was stated in defendant’s brief of argument:
It is submitted that the requirement for approval of the town planning authority is to ensure that the building conforms to the requirement of the Planning Authority. Exhibit K was, ex facie, approved by the Medical Officer of Health (23.1.75) by an official of the Ministry of Works and Planning (27.1.75) and by the Principal Town Planning Officer.
Be that as it may, this is clearly not the issue. The issue is that Nuisance has been committed from the premises occupies 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, to 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. See Blackstone; Commentaries on the Laws of England, vol.1 p.306.
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 purpose 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 N.L.R. 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. The conclusions which follow from the above reasoning are that
I hereby allow the appeal because of my conclusions in (1), (2) and (5) and dismiss the appeal for the reasons in (3) and (4). However, action of the plaintiffs struck out for a misjoinder of the parties. There shall be no order as to costs.
This appeal has inter alia raised important issues of (1) the distinction between public and private nuisance (2) who can sue in respect of either nuisance in view of the provisions of section 6 subsection 6(b) of the Constitution of the Federal Republic of Nigeria 1979 and (3) whether it is appropriate to bring a representative action in a claim of nuisance.
The facts of the case have been ably stated in the judgment of my learned brother Karibi-Whyte, J.S.C. which I have had the privilege of reading in advance. I do not wish to repeat them here in detail except as I deem necessary for clarity.
The fact that nuisance has been proved in this case is not in dispute. What is contentious is the classification of the nuisance. In other words is it a public nuisance or a private nuisance? The nature of the nuisance allegedly suffered by the appellants, as plaintiffs can be gleaned from paragraphs 11 to 16 inclusive and paragraphs 19 and 21 of their Amended Statement of Claim which read thus:
(i) the said commercial vehicles and trailers have caused great damage to roads, water pipes, electric and telephone poles and wires in the Estate; the said vehicles have been driven recklessly through the Estate without regard to the safety of the Estate who are the plaintiff in this suit;
(iii) excessive noise is being caused during the day and at night from reckless hooting and speeding by drivers of the said commercial vehicles and/or trailers;
(iv) robbers and other undesirable people use, as hideout, some of the defendant’s vehicles which have broken down and subsequently abandoned on the roads inside the Estate;
(v) unbearable volume of dust is being thrown on the road users particularly the plaintiffs and members of their respective families and on the houses in the Estate following the reckless manner the commercial vehicles and/or trailers are usually driven by the defendant’s drivers and/or agents.
All the averments were denied by the respondent as defendant. The learned trial judge, Ayorinde, J. (as he then was) found as follows:
“ I find that the 1st defendant owns over 100 heavy vehicles or trailers which are double parked on the Oke-Iho/Ugali street in the Estates. I accept the evidence of the plaintiffs that these vehicles come in and out at any time of the day or night and that they make violent disturbing noises. I also accept the evidence of the plaintiffs that they created unbearable volume of dusts and their presence in the neighbourhood bring in a lot of undesirable elements. I accept as proved that these vehicles damaged road, telephone poles, water pipes and their big tyre make big pot holes on the untarred road. I believe RW.6 that the drivers, mechanics and their mates leave refuse behind and that waste engine oil are discharged in gutter and roads kept and maintained by the plaintiff and their members.
I believe the plaintiffs that when these vehicles are fully loaded, excessive noise is caused by their engine and hooting and that they cause vibration and concluded that the foregoing amount to private nuisance.”
He therefore, entered judgment for the plaintiffs. Being aggrieved by the decision the defendant appealed to the Court of Appeal, where the decision of the learned trial judge was reversed by Nnaemeka-Agu, J.C.A. (as he then was) and U. Mohammed J.C.A. with Ademola, J.C.A. dissenting the Court of Appeal (per Nnaemeka-Agu, J.C.A. who delivered the leading judgment) held as follows:-
“On the above findings of the learned judge the nuisance as found consists of violent disturbing noises, whipping up unbearable volume of dust, damage to roads, telephone poles, water pipes and big trees, making of big pot holes on the untarred roads, leaving refuse behind and engine oil in gutters. The lorries also cause vibrations. It was not averred that these affected the respondents in any way over the and above the others in the community. Rather the nuisance complained of, true was so widespread and extended to all the residents of the Estate including, non-members of the Association. They were, therefore, of the category of public and not private nuisance. The learned judge was therefore in error to hold that it was private nuisance.”
Learned Senior Advocate for the plaintiffs, Chief Afe Babalola, has argued that contrary to the findings of the Court of Appeal, the evidence adduced before the High Court established that the complaints of the plaintiffs related to private nuisance. He argued that the act of blocking the entrance to a house is a private nuisance. He relied on A-G v. Gastonia Coaches Limited (1977) R.TR. 219 at pp.240 C-D, 243 H-J, 244 C-D and 245 D-E in support of the argument and the dissenting judgment of Ademola, J.C.A.
For the respondent it was submitted, relying on the dictum of Denning L.J. in A-G v. PYA. Quarries Ltd. (1957) 2 Q.B. 169, that the nuisance suffered by the plaintiffs was a public nuisance. The dictum state:
…a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”
But in Volume 28 of Halsbury’s Laws of England, 3rd Edition, private nuisance has been defined in paragraph 1558 at p.128 thereof as follows:
“A private nuisance is one which does not cause damage or inconvenience to the public at large, but which does interfere with a person’s use or enjoyment of land or of some right connected with land. It is thus a violation of a person’s private rights as opposed to a violation of rights which he enjoys in common with all members of the public.”
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 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. He it is 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 p. 184; (1957) 1 All E.I.R. 894 at 904. On the other hand if the lorries were parked on the high way, that would take the nuisance out of the realm of being private and it would become public.
In the present case, the facts as found by the learned trial judge show that the plaintiffs as residents and landlords at Ire-Akari Housing Estate were inconvenienced by the manner in which the defendant’s lorries were parked. Some of the plaintiffs were denied entrance to their houses, others as landlords were made to loose prospective tenants who could not put up with the noise made by the lorries and so on. Surely, those inconveniences constitute private nuisance as distinct from whatever public nuisance they might have caused. Accordingly, I disagree, with respect, with the decision of the majority in the Court of Appeal that the nature of the nuisance caused by the defendant belongs to the class of public nuisance. In my opinion, the learned trial judge was right in finding that the nuisance caused to the plaintiffs was private nuisance.
The defendants have argued that the plaintiffs could not sue since the nuisance they suffered was public. In view of the foregoing, I think, the argument is based on a wrong premise. Since I hold that the plaintiffs suffered private nuisance, the question whether only the Attorney-General of Lagos State can sue as a relator will not arise. However, I need only to point out that it is doubtful, in view of the provisions of section 6 subsection 6(b) of the 1979 Constitution, if the limitation under common law as to who has the right to bring action for public nuisance is now of any significance in this country. It would appear to me that both the individual affected by such nuisance and the Attorney-General are at liberty to sue. In other words, they have equal right to do so. The former, as a private person and the latter on behalf of the public at large – see Ransome- Kuti v. Attorney-General for the Federation, 1985 2 N.W. L.R. 211 at p.237 per Eso, J.S.C. The distinction between public and private nuisance will only be necessary, where the question arises as to whether an Attorney-General can sue on behalf of the public in respect of a particular or given nuisance.
I now turn to the last question that I wish to consider. That is the issue pertaining to the capacity of the appellants to sue as representatives and on behalf of all the members of Ire-Akari Housing Estate Association. The Association is made up of the residents of the Housing Estate. By Order 13 rule 14 of the High Court of Lagos State Rules, Cap.52 of the Laws of Lagos State, 1973 which is applicable to this case:
“Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the Court or a judge sue, or may be authorised by the Court or a Judge in Chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”
The plaintiffs complied with the requirement of the rule and were accordingly given leave to bring the action. This, is no doubt in order. What is, however, the bone of contention is whether the plaintiffs have common interest in the action which they brought in the High Court. Learned Senior Advocate argued on behalf of the plaintiffs that the test which a representative action should satisfy is that all the members of the class represented should have a common interest and a grievance and that the relief claimed should in its nature be beneficial to all represented. He relied on the decision in Ogamioba v. Oghene, (1961) 1 All N.L.R. 59 at 62 and submitted that since the plaintiffs were residents of Ire-Akari Housing Estate they had a common interest in respect of the health and comfort of the Housing Estate. Learned Senior Advocate also cited in support the case of Adefulu v. Oyesile, (1989) 5 N.WL.R. (part 122) 377 at p.396 F. and submitted on the authority of Dilibe v. Nwakozor, (1986) 5 N.WL.R. (part 41) 315 at p.317 that it is too late in the proceedings to challenge the competence of the plaintiffs to sue.
In reply, it was submitted in the respondent’s brief of argument that Order 13 rule 14 of the High Court Rules is applicable only where the representative suing as well as those represented have the same interest in the action before the court. It is further canvassed that neither the plaintiffs’ statement of claim nor the evidence adduced in support of the pleadings show that each of the persons represented in the action have the same interest in the suit, having regard to the only basis upon which it would be lawful and permissible for them to prosecute the actions in their own names. Learned counsel to the defendant, Mrs. Ayeni, submitted on the basis that the nuisance suffered by the plaintiffs was public nuisance and there cannot be a representative action because the parties bringing the act suffered different nuisance and cannot share the damages if awarded as a lump sum.
The fact that the plaintiffs suffered private nuisance has been settled. The nature of the nuisance as found by the learned trial judge consisted of first, double parking of over 100 heavy vehicles or trailers on the Oke-Iho/Ugali Street of the Housing Estate, secondly, the vehicles moved in and out of the street at any time of the day and night and that they made violent noise. Thirdly, that the vehicles damaged roads, telephone poles and water pipes and fourthly, that the drivers, mechanics and their mates leave refuse behind. Fifthly, waste engine oil from the vehicle was being discharged in the gutters and roads maintained by the plaintiffs and the members of their Association.
Now it had not been shown by the plaintiffs that all the residents of the Ire-Akari Housing Estate were members of the Association. Moreover, from the description of the nuisance caused by the defendant, the residents of the Housing Estate could not have suffered the same type of nuisance or inconvenience. In my view, each and every resident must have suffered different kind of nuisance from the act of the defendant’s vehicles and employees. It might have been by way of blocking the road by the vehicles, the noise from the vehicles, the leaving behind of refuse by the employees, the pollution of the gutters with discharged oil or the noise by the vehicles at night which was capable of disturbing sleep.
By the provisions of Order 13 rule 14, the persons being represented and the persons representing them must have the same interest in the cause or matter. Not only that, the grievance which they all have must be common grievance. I expressed the same view in Adefulu v. Oyesile (supra) at p.396 where I said:
“Now it is clear that to bring a representative action under Order 8 rule 9, (of Ogun State) it is essential that the representative in the action must have the same interest as the persons that he claims to represent. If the interest as well as the grievance are common, a representative action would be in order, provided that the relief action would be in order, provided that the relief sought in the action is in its nature beneficial to those whom the plaintiff represents.”
Surely, by the nature of the nuisance created by the defendant, the grievances of the plaintiffs and the persons in the Association they represented cannot be the same or common in all respects – See Oragbade v. Onitiju, (1962) 1 All N.L.R. 32 and Ogamioba & Ors. v. Oghene & Ors. (supra). I am, therefore, of the view that the trial court was in error when it granted the plaintiffs the leave to bring the representative action.
Learned counsel for the defendant did not in her argument refer to the point made on behalf of the plaintiffs, that on the authority of Dilibe’s case (supra) it was too late to raise the objection in the Court of Appeal or even in the trial court on the issue of representation since it was not raised at the earliest opportunity. But on the authority of Smith v. Mansi, (1963) 1 W.L.R. 236 she referred us, by a letter, to the Court of Appeal decision in Flour Mills v Akpabio & Ors. (unreported) suit No.CA/L/26/88 judgment delivered by Ademola, J.C.A. on the 25th day of March, 1991 and Dilibe’s case (supra) at p.330. I think the issue here goes beyond the defendant not raising objection in the High Court to the application for representation by the plaintiffs. The point is fundamental since it touched on the jurisdiction of the trial court to hear the action, in view of section 239 of the 1979 Constitution which provides as follows:
“239. The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and Criminal process of the court) from time to time prescribed by the House of Assembly of the State.”
It follows that for a High Court to exercise its jurisdiction properly, it has to follow the procedure or rules provided for it to do so. Since the trial court did not, in giving leave for the representative action to be brought, comply with the provisions of Order 13 rule 14 of the High Court Rules, it is my view, that it did not exercise the jurisdiction vested in it in the manner provided by the constitution. This has affected the whole proceedings in the action. Accordingly the irregularity in granting the leave has led to miscarriage of justice.
In conclusion, on the whole, I will, therefore, allow the appeal in part and strike out the action, as done in the judgment of my learned brother, Karibi-Whyte, since it was wrongly brought in a representative capacity, with no order as to costs, so that the plaintiffs may separately seek redress as they may deem fit.
Nuisance is an act or 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.
The defendant/respondent in the instant case on appeal has right of occupancy to three plots of land and he got authority, so it is claimed, to run a transport company on the premises. This activity includes keeping a workshop and a fleet of various motor vehicles, light and heavy.
His right was to keep his vehicles within his premises including their noxious fumes and greases and oils which could pollute. If any vehicle should go out of the premises in furtherance of the company’s business obligations, and in the process enters into the common public way, the company’s right is limited to that of passing and repassing, not that of blocking the road by single or double parking as to obstruct the passage of other users of the road. Similarly, any effluent drained onto the roads and drainages polluting the neighbourhood will certainly constitute nuisance.
In the instant case, all the evidence led by the plaintiffs indicates existence of some nuisance. But none of the plaintiffs, who are members of Ire-Akari Housing Estate Association, has been able to prove individual hazards exclusive to each member as to justify finding of private nuisance. At best the evidence indicates some public nuisance which unfortunately is in the province of prosecution by the Attorney-General as a criminal matter. Though it is not necessary that every member of the neighbourhood had been affected by the nuisance but it is always a question of fact whether the nuisance affects sufficient number of persons to deem it public nuisance. The evidence on record certainly shows some nuisance but it stays short of indicating who has suffered what. Even though in a public nuisance where an individual can show that he personally has suffered some damages, he can sue for private nuisance. Ejowhomu v Edoke-Eter Ltd. (1986) 5 N.W.L.R. (pan 39) 1. Ipadeola v. Oshowole (1987) 3 N.W.L.R. (part 59) 188. The peculiarity of nuisance in Common Law makes it imperative to decide on either having a criminal prosecution by lodging a complaint for Attorney-General to prosecute, or if any individual has suffered distinct damages as a result of the nuisance and thereby take civil action to remedy the wrong done him. It is difficult in this case to ascribe with clarity what each member of the Association has suffered, even though some elements of nuisance appears to exist.
It is for the foregoing reasons and fuller reasons in the leading judgment of Karibi-Whyte, J.S.C., with which I am in total agreement, that I will agree with him that the proper order to make as a verdict in the Court of Appeal ought not to be that of dismissal. I hereby in its stead enter a verdict of the suit being struck out. In view of the fact that the error leading to this appeal being allowed is on the mere fact of the case being tried in representative capacity, I shall make no order as to costs.
I am privileged to have read in advance, a copy of the lead judgment of my learned brother, Karibi-Whyte, J.S.C. and for the reasons stated therein, I shall dismiss this appeal since the representative action is incompetent. The evidence did not show that the appellants as plaintiffs have common grievance, common interest and the reliefs being sought would be beneficial to them all. See Smith & Ors. v Cardiff Corporation (1954) 1 Q.B. 216.
The action is accordingly struck out and there shall be no order as to costs.
I had the privilege of reading in advance the judgment of my learned brother, Karibi-Whyte, J.S.C. just delivered. I agree with his reasoning and conclusions. I do not intend to repeat issues formulated by both parties and the facts so succinctly stated in the lead judgment, but I will highlight some facts if only to support the points which led to the reversal of part of the judgment of the lower court.
There are two main issues and these are whether the acts complained of amounted to a public nuisance or private nuisance. If it was a private nuisance, whether the action could be maintained in the representative capacity. Chief Afe Babalola, S.A.N., agreed with the first issue earlier mentioned by me when in his oral submission before us he submitted that the main issue is whether or not the activities of the respondent constituted private or public nuisance.
In their pleadings the appellants averred in paragraphs 11, 13, 15 and 19 as follows:
“11. The plaintiffs are the owners and/or occupiers of several houses situated in the Estate.
These averments were denied by the respondent in the Amended Statement of Defence jointly filed by the defendants See paragraph 2 of the second amended statement of defence. It should be pointed out at this stage that there is only one respondent to this appeal as the case against the 2nd defendant was dismissed. There was no appeal against that dismissal by the present appellants in the Court of Appeal. See p.102 lines 2-3 of the Record of Appeal. The title of the appellants’ brief with regard to the parties to this appeal is therefore misleading. The defence of the respondent as pleaded is found in paragraphs 2, 3, 6, 9 and 12 of the second amended statement of defence. These paragraphs read thus:
The defendants deny paragraphs 1, 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 22 of the statement of claim and put the plaintiffs to the strictest proof thereof.
It is better to refer to the conclusion of the majority judgment in the lead judgment of Nnaemeka-Agu, J.C.A. (as he then was) where the learned justice concluded that the nuisance complained of was a public nuisance. The learned justice said:
“Looking at the findings of fact by the learned judge on the evidence before him which I shall set out below, and which has not been appealed against, I take it that aspect of issue number I supra as to whether nuisance was proved as a non-issue. It was the main thrust in the appellant’s case that what was committed if at all, was public nuisance which can only be sued for by or at the relation of the Attorney-General of Lagos State.”
After referring to the definition of private nuisance in Halsbury Laws of England vol. 28 (3rd Ed. paragraph 128) he concluded thus:
“It is to be observed from the above definition that private nuisance is defined in terms of a person’s relation to the public: that the damage or inconvenience is exclusive to ones-self is an essential ingredient of private nuisance. If it affects the public or a class of persons in the community, then it is public nuisance.”
Neither side has challenged the definition given by the learned Author of Halsbury but one must not stop there if only to appreciate the case of the appellants.
There was evidence before the learned trial judge of what the appellants suffered. The evidence of Francis Gbadebo Adebowale, a registered Medical Practitioner who was the first witness for the plaintiff appears to me conclusive. He said:- “I am just two blocks from the premises occupied by the defendants. Since I moved into my property in March, 1976, the defendants had created a situation which made life difficult and dangerous for me. They operate heavy duty vehicles, petrol tankers and bitumen tankers during the day. They woke me up at about 5 a.m. when they start several vehicles together in preparation for the day’s work. in the evening these vehicles return in drifts. On many occasions I had to stop my vehicle as these heavy trailers normally block the road. Several of them are parked two abreast in the evening along Okeho. Even yesterday they parked two (sic) abreast with about four to five in a row … Deserted vehicles are left on both sides of the road adjoining premises. These obstacles left along the road are never at any time lighted.
(See p.45 lines 31 to page 46 lines 1 – 16 of the record of appeal).
It appears to me that this evidence supports paragraph 15 of the amended statement of claim where the appellants who were the plaintiffs in the trial court averred:
“15. The plaintiffs will also contend at the trial that the said vehicles and trailers are often wrongfully parked along both sides of the major roads in the Estate with consequent inconvenience and discomfort to the other road users, particularly the plaintiffs and members of their respective families”
It will therefore, in my view, be wrong for the lower court to conclude thus:
“It is observed that nothing has been pleaded in these paragraphs that is special to the respondents and their families as distinct from other members of the class of the community to which the respondents belong. There was nothing alleged in favour of the respondents as such.”
A careful reading of the evidence led by the appellants: PW.3, PWA, and PW.5 shows that extent of individual hardships inconvenience and discomfort suffered by the plaintiffs and I will agree with the conclusion reached by Ademola, J.C.A. in his dissenting judgment when the learned justice said:
“The finding of the learned judge is to the effect that it is a private nuisance. In so doing, the learned judge is right. On the case before him and on the pleadings filed, the complaint is about the way and manner the appellant, being an occupier of plots of land in the estate, uses his land in a way that is inconvenient to his neighbours who are also resident in the estate. One only has to look at the paragraphs of the amended statement of claim, i.e. 7, 8, 10, 12 and 13 to know the nature of the action placed before the court by the respondents. From the evidence led to support all these paragraphs, it cannot in my view be said that the nuisance complained of was of public nature as to amount to a crime which is essential in the definition of public nuisance. The nuisance complained of here is one that has affected individuals in the enjoyment of their properties and personal comfort. The appellant in the court below met the case on the level of private nuisance and the evidence to my mind throughout the case does not suggest or could not have suggested that this is a matter of public nuisance.
It is not the case of the respondent that the findings by the trial judge even if true do not constitute actionable nuisance. The facts have not been effectively challenged. Since there was evidence that individuals suffered the hardships highlighted in the evidence it is my view that it is a private nuisance.
The use made of exhibit A (the minutes of the meeting of Ire- Akari Housing Estate Association attached to the affidavit in support of the application to sue in a representative capacity) by the lower court gives the impression of making a case not canvassed before the lower court. If Exhibit A has been used to cross-examine the plaintiffs then opportunity would have been given to them to explain why and how that Exhibit came into existence. The difference between private and public nuisance does not lie alone in the action of one being taken by an individual who complains of the nuisance and a relator action to be taken by the Attorney-General but also in whether the nuisance is so widespread in its range or indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings to stop it as distinct from the community at large. Attorney-General v. PY.A. Quarries Ltd. (1975) 2 Q.B. 169/191. It was for this reason based on that Exhibit A that the lower court came to the conclusion that not all the residents of the Estate were members of the Association and further that the nuisance complained of, true was so widespread and extended to all the estate including non-members of the Association the (sic) Estate including non-members of the Association. They were therefore, of the category of public and not private nuisance. Without the use made of the minutes and reliance placed on it by the lower court, there would have been no evidence in support of the conclusion reached by the lower court. Where an appellate court decides to make use of a document in respect of which no issue has been joined, counsel on both sides should be called upon to address the court. To do otherwise may amount to an exercise in futility as the court is only enjoined to pronounce on issues submitted before it for adjudication. I will also agree that it is a private and not a public nuisance.
If it is appreciated that the basic claim in nuisance is founded in the maxim sic utere tuo ut allienum non laedas: a person must use his own property so as not to injure that of another, the reliance placed on Exhibits A, K and L is misplaced as these exhibits give no licence to the respondent to commit any act of nuisance. The learned trial judge had gone too far in declaring Exhibit K a fraud. Even its validity notwithstanding, it is no answer to the claim of the appellants in nuisance. It gives no licence for obstruction.
I now come to the issue of parties or the competence to sue in a representative capacity. Although this appears a subsidiary issue, it goes to the jurisdiction of the court itself. I agree with the submissions of Chief Williams in his brief that the unlimited jurisdiction conferred on the High Court under section 236 of the 1979 Constitution can only be exercised in accordance with the practice and procedure laid down by the legislature of each state. Whilst the access to the court is unrestricted, by virtue of S.6(6) (b) of the 1979 Constitution, the action taken to seek redress comply with the rules of court. The rules are not only made to be obeyed but equally made to guide the orderliness or conduct of cases in court. They form the basis of a fair trial. Before going further, I will say that the step taken by Mrs. Ayeni, the learned counsel for the appellant, in sending an authority to the court after the appeal had been adjourned for judgment is in accordance with our practice. I will however add that authorities sent after adjournment must relate to the submissions made in the course of argument. Any authority which raises completely new issue will be disregarded. I will quickly add that that is not the position in this case.
In the majority judgment of the lower court, per Nnaemeka-Agu, J.C.A. (as he then was) the court said:
“It appears to me to follow from the fact that the respondent had to rely upon and prove their separate, as distinct from their common rights in order to have a right of action, that they cannot join to claim a lump (sic) sum as damage to them all.”
Reliance was placed on Order 15 rule 4(2) of the Rules of Supreme Court of England 1985 with regard to joinder to plaintiffs without leave; the rationale behind this rule can be found in Order 15 rule 4(3) of the same Rules. I need not go into that more so when reliance was placed by the lower court on Amachree v. Newington (1952) 14 WA.C.A. 97/99.
I will now examine the rules authorising the appellants to sue in a representative capacity and see if it is caught by the decision in Amachree v. Newington (supra). The application to the court of trial was under Order 13 rule 14 of the High Court Rules of Lagos State. It reads:
‘Whether there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the court or a judge sue or be sued, or may be authorised by the court or judge in Chambers to defend any such cause or matter, on behalf or for the benefit of all persons so interested.”
From the pleadings and evidence by the appellants, it was established that these appellants have the same interest in the action with the Association and consequently they were authorised to sue in a representative capacity. This procedure as it is commonly called, is a rule of convenience. Although the discretionary power of the judge to grant the application has not been attacked on the ground that it was not exercised judicially, one must however relate this capacity to this cause of action. Having come to the conclusion earlier that a case of private nuisance has been made out the question now is whether the plaintiffs/appellants can maintain the action in the present form that is in the representative capacity. One must concede however that the appellants have in their pleadings especially paragraphs 2 and 3 of the amended statement of claim given notice that they sued in a representative capacity. The two paragraphs were denied by the respondent in this appeal. (See paragraph 2 of the Amended Statement of Defence) Chief Ate Babalola relied on Dilibe v. Nwakozor (1986) 5 N.W.L.R. 315/317 and Mrs. Ayeni has drawn our attention to page 330 of the same report. In citing the judgment of the court in Dilibe’s case Macaulay, J.C.A. said:
‘… If therefore, as in this case, the capacity in the respondent to this has been established, whether by admission or by evidence, in so far as that authority was not challenged at the hearing or at any time before judgment, the appellants cannot now complain of the form of judgment given. It is also the law that where, as in this case, the authority of the respondent to sue in a representative capacity is not challenged, or is otherwise admitted, the respondent having satisfied the court that he was so authorised, has discharged the onus in law placed on him. If this authority has been successfully challenged, obviously then that suit would have come to grief (see Chapman v. C.FA.O. 9 W.A.C.A. 86) and the learned trial judge might have dismissed the action by nullifying the proceedings.’
I agree with that proposition of law by Macaulay, J.C.A. I presided over that appeal in the Court of Appeal. I agree with the conclusion reached by him. My view has not changed. However, the crux of the matter in this appeal is whether in a case of private nuisance, whether the damages suffered by individual will necessarily be the damage suffered by an Association. I have also read the unreported case of FIourMills of Nigeria Ltd. v. Mr. J.W. Akpabio & 12 Ors. delivered on 25th March, 1991 by the Lagos Division of the Court of Appeal in CA/L/26/28. The issue in that case as clearly put by Ademola, J.C.A. was:-
‘The bone of contention between the parties to this appeal however is whether or not order 13 rule 1 envisaged a situation where the parties as respondents (having regard to their pleading which shows clearly that there is no community of interest) can claim by their writ one single relief as in the present case.’
The learned trial justice then relied on Amachree v Newington (supra) but concluded thus:
“In my view, (i.e. the claim) shows 13 people who have had their contract of employment terminated on different dates are claiming one relief i.e. N117,697.65 in a single action against one defendant.”
Relying even on the evidence given by the plaintiffs and their witnesses in this case, it has not been established when each and every one of them went to bed and how each was disturbed during the period in question. The writ issued was for a joint claim it is therefore difficult to apportion the damages suffered in respect of the inconvenience and hardship by each and every member of the Association. The prerequisite conditions of a representative action are the plaintiffs must have common grievance, common interest and that the relief sought by the claim is in its nature beneficial to them all. See the case of Smith & Ors. v. Cardiff Corporation (1954) 1 O.B. 210 already cited in the lead judgment. While in this case it has been shown that they have a common interest, the grievance of individuals is separate and distinct, consequently a representative action taken as in this case must fail. One can appreciate the difficulty posed by this claim where all the residents of Ire-Akari take out as many writs as the members of the Association, consequently so many actions will be tried by the courts. The nuisance value of the trials of about one hundred cases cannot compromise the requirement of law that a separate action in respect of private nuisance complained of must be taken by individual. This no doubt may not be a convenient form of procedure but whatever the inconvenience, our rules made under the various High Courts Rules must be obeyed.
It is for this reason that I will allow the appeal to the extent that a case of private nuisance has been made out but will reluctantly dismiss the appeal on the ground that the action cannot be maintained in a representative capacity. In the words of Morris, L.J., in Smith v. Cardiff Corporation (supra) at page 227, this objection to the representative action concerns merely a bald point of procedure, in regard to which it has seemed to me that a success does not profit and defeat does not hurt.
It is for this reason that the action of the plaintiffs will be and is hereby struck out for misjoinder of the parties. I make no order as to costs.
Appeal allowed in part.