POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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3PLR /1970/1 (HC)
Balogun (Mrs), for the Plaintiff.
Akinbesehin, for the Defendant.
Nuisance-Adjoining owners-Noise-Poultry farm.
DOSUNMU, J.:- The plaintiff in this action is a Chartered Accountant and he lives with his family at 7 Shofidiya Close, Surulere. The defendant owns and occupies the adjoining property at 8, Shofidiya Close, Surulere. The two houses are situate in an area in the suburb of Lagos which is zoned for residential purposes only. The defendant is a pharmacist by profession and he keeps a poultry at the back of his house as a pastime.
It was in 1969 that he started the poultry business in a big way when he purchased some 400 day old chickens and had them delivered to his house. He keeps the chickens in pens which he erects on the boundary wall that separates his own building from that of the plaintiff. The pens, however, extend round until they nearly reach another adjoining plot of land owned by his wife. They do not, however, reach the back of this particular plot, and no reason has been given why they stop short. But I do not think there is any motive behind this. The boundary wall that separates the adjoining houses is said to be about 5ft. to 6ft. in height, and 8ins. thick. It is about 5ft. distant to the building of the plaintiff and the pens rest on this wall.
When the defendant first introduced this large quantity of chickens into the house, the plaintiff said that he protested to him that it would cause him great offence; but the defendant assured him to the contrary. As time went on, he (the plaintiff) met the defendant to complain that his comfort is being disturbed as a result of the nuisance created by the keeping of the poultry so close to his dwelling house; and because the defendant took no action, he has to institute these proceedings claiming an injunction to restrain the defendant’s acts of nuisance and damages.
The claim is broadly put on three bases: (1) Excessive noise made by the chickens in the early hours of the morning between 4.30 a.m. and 5 a.m. which prevents the plaintiff from having a good sleep. (2) Odious smells emanating from the same chicken pens as a result of the excreta or drop-pings in the poultry; and (3) Rats, flies and fleas escaping from the poultry into the house and disturbing his comfort and impairing his health. In the pleadings there is also an averment that the plaintiff’s house has been rendered uninhabitable. It is sufficient, however, to say that there is no satisfactory evidence given in regard to this, and no claim for any loss in value has been advanced in respect of the property. In any case it is clear from the evidence that the plaintiff and his family are still very well inhabiting the building with the new additions that were made thereto.
During the proceedings I was invited to say whether poultry keeping in this part of Surulere, and indeed, in other parts of Lagos, such as Apapa and Ikoyi is a statutory nuisance within the provisions of the Public Health Act. But I propose to deal with the facts of this case not on the basis as to whether there is a statutory nuisance or not; but to approach them from the principles which common law lays down for the protection of individuals in the exercise or enjoyment of their rights. There can be little doubt as to the law which applies to the facts of this arise; and it is convenient to start by refer-ring to the observations of Lord Lorebum, L.C., in Polsue and Affiery Ltd., v. Rushmer (1907) A.C. at p. 123 when he said: “The law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury in the case of Calls v. Home & Colonial Stores Ltd., (1904) A.C. 185. He said: What may be called the uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases, it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give the right of action. This is a question of fact”. In the consideration of an alleged nuisance by noise Luxmoore, J., sets down in Vanderpart v. Mayfair Hotel Co. Ltd., (1930) 1 Ch. 165 what seems to me to be a helpful approach to the matter. He said: “Apart from any right which may have been acquired against him by contract, grant or prescription, every person is entitled as against his neighbour to the comfortable and healthy enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among English people; See Walter v. Selfe (1851) 4 Deb and Sm 315 and the remarks of Knight Bruse, VC. It is also necessary to take into account the circum-stances and character of the locality in which the complainant is living. The making or causing of such a noise as materially interferes with the comfort of a neighbour, when judged by the standard to which I have just referred, constitutes an actionable nuisance, and it is not necessary to say that the best known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner. Again, the question of the existence of a nuisance is one of degree and depends on the circumstances of the case”. In any organised society every one must put up with a certain amount of discomfort and annoyance from the activities of his neighbours; and in this case, I have to strike a fair and reasonable balance between the defendant who likes to keep a poultry for his pleasure in his house and a neighbour who is entitled to the undisturbed enjoyment of his property. The standard in respect of the discomfort and inconvenience which I have to apply in this case is that of the ordinary reasonable and responsible person who lives in this particular area of Surulere. As Veale, 7., puts it in Halsey v. Esso Petroleum Co. Ltd., (1961)2 A.E.R. at p. 151: “This is not necessarily the same as the standard which the plaintiff chooses to set up for himself. It is the standard of the ordinary man, and the ordinary man, who may well like peace and quiet, will not complain for instance of the noise of traffic if he chooses to live in the main street of an urban centre, nor of the reasonable noises of industry if he chooses to live alongside a factory”.
Bearing all these considerations in mind, I turn to the facts of this case and take the matter of noise first. The evidence of the plaintiff who alone testified on this aspect of the case is that in the early hours of every morning the chickens whose number he put at 800 make clickings or noise which disturbs his sleep. I have not heard satisfactory evidence as to the exact or actual number of chickens kept by the defendant. In the Statement of Claim which remained unamended, it was pleaded that they were 300; but in the Statement of Defence the defendant was content with just pleading that he kept a reasonable number. In an earlier affidavit the defendant had deposed to keeping 300 chickens in his poultry. There is no dispute, however, that the defendant started off with 400 chickens which he said the plaintiff helped him in obtaining. As there was no evidence of any pestilence which could have destroyed them, I am inclined to think that the defendant had some 400 chickens in his pens at the material time. The plaintiff’s evidence continued that the noise increases as the chickens grew older. The defendant himself admitted that these chickens do make noise, but he said that it is not excessive and that they only make noise when they are hungry or being fed. I accept the evidence of the plaintiff that these chickens do make noise at the early hours of the mornings, and when some 400 chickens do join together to click or make noise about the same time and at this particular time of the night, it is bound to be excessive and to disturb the peace of a neighbour who is barely 5ft. from their pens. After all, the main object of living in a house is to have a room with a bed in it where one can sleep at night. Night and up to the early hours of the morning is the time when the ordinary man takes his rest. No real complaint is made by the plaintiff of noise being made in the day time, although there was some evidence that the chicks also make noise in the day. It seems to me that noise made by the chickens at these hours of the night are more than triviality and the plaintiff is justified if he complains. I do not accept that the plaintiff is unduly sensitive for the defendant himself admitted that the portion of his house wherein he dwells is further away from the poultry than the additional building of the plaintiff wherein he once occupied.
I now deal with the question of smells. On this the plaintiff also testified that the smells coming out of the poultry are so nauseating that he has to feed outside at times. He called witnesses, not neighbours though, who called socially and otherwise at his house and sensed the smells. Some of the witnesses went further to say that they had to stop visiting the plaintiff because of the smells, and as a result of this, some business deals had to be missed. The evidence of Dr. Daniel, a Medical Officer of the Lagos City Council is that on visiting the poultry of the defendant on the 5th May, 1970, he found dead fowls in it and they gave out bad odour as well as the excreta of the chickens. This happened in the day time, and one can well imagine the intensity of the odour in the night depending on the direction of the winds. The witness continued by saying that he moved over to the plaintiff’s house and from there he smelt the odour which he described as unbearable. On the other hand the defendant testified that he never smells anything odious from his poultry. His brother and a brother-in-law also gave evidence that they never experienced any bad smells from the defendant’s house or pens any-time they visited him. There can be no doubt, however, that droppings from chickens do smell when left for awhile. Although the defendant claims to keep the poultry tidy, but not smell proof, it is weekly that the droppings are cleared by his labourers. These droppings or excreta will undoubtedly give out bad smells since they are not cleared up immediately and a person such as the plaintiff who is close to the poultry will sense it more than the defendant unless when the latter pays his regular visits to the poultry to satisfy his tastes. He has said that he loves to watch the chickens grow or lay eggs and in that circumstance he must be less sensitive to bad odour from the pens than an ordinary person. I do not believe that the plaintiff is being fanciful in all his complaints of excessive noise and smells and they are, in my judgement, more than trifling inconvenience that an ordinary person living in that part of Surulere which is a residential area can be called upon to bear. I accept the plaintiff’s evidence that bad smells came out of the defendant’s poultry.
I now deal with the question of flies, rats and fleas. It is the case of the plaintiff that the existence of the poultry near to his house attracts an unusual population of flies and they cross from the poultry into his house. One or two of his witnesses including a Medical Officer testified to the great number of flies discovered in the plaintiff’s house and some determined efforts were made to link the stomach complaints which the plaintiff and his family made to their Doctor as arising from the visitation of the flies and rats. Plaintiff’s witness, Dr. Sogbetun testified that he treated the plaintiff for sleeplessness and family for dysentery, and this latter ailment is caused by eating or drinking anything contaminated by disease carrying agents such as flies and rats are. Even the defendant’s witness, Dr. Ayaji, agreed that flies are disease carrying agents, although he disagreed that bad smells can cause dysentery. The question here is whether it has been satisfactorily proved that they are the rats and flies from the defendant’s poultry that infested the food eaten by the plaintiff and his children and therefore affected them with dysentery. As the defendant’s Counsel correctly pointed out, flies do abound everywhere, and unless they are tracked down, it is not easy to say that a particular group of flies originate from a particular source. I have received no evidence that flies located in the defendant’s poultry eventually found their way into the plaintiff’s house or that a group of fleas moved particularly across the border into the plaintiff’s room to disturb his sleep. I realise that the plaintiff said he saw rats creeping from the walls into his house but he could not say from where the rats started their journey. The evidence that there were no rats before the erection of the poultry nearby does not impress me. How large is the population of the flies which the plaintiff spoke of, I do not know. What number of rats invaded him from the defendant’s poultry was not proved in evidence. I realise how difficult it is to prove all these things, but in the absence of satisfactory evidence on these points I find it difficult to say that nuisance has been established on this head. I do not say that the plaintiff and his children never suffered from dysentery, but I can say that it has not been proved that they are the rats and flies that come from the defendant’s poultry that give them this sickness. Surely, it has not been suggested that it is the noise and smells from the adjoining poultry that caused the dysentery. In my view, therefore, the plaintiff has made a good case under the heads of smells and noise only and the defendant is liable to him.
It is pleaded in paragraph 11 of the Defence that other neighbours keep poultry in their respective premises and that some of them started after the defendant. Apart from the fact that no evidence besides the defendant’s own bare statement was led in support of this averment, it hardly affords a defence to the plaintiff’s action. So, too, is the suggestion of the defence Counsel that some eminent personages in Lagos keep poultry in their respective premises. The editorial note to the case of Leeman v. Montague (1936) 2 A.E.R. 1677 seems relevant. The editor says, “Cases of nuisance usually raise a difficult question of degree, since practically everything that is held to be a nuisance is a trade or business that has to be carried on some-where. The question, therefore, is as to what degree of nuisance is to be tolerated in particular circumstances and the present case defines with some precision the position with regard to poultry farm”. The facts of the case are as follows: “The plaintiff purchased a house in a partly rural, but largely residential district. Adjoining this house was a poultry farm, and about 100 yds. from the plaintiff’s house was an orchard in which the poultry farmer kept large number of cockerels.
The plaintiff complained of the noise made by the cockerels in the early mornings and threatened proceedings unless they were removed. The cockerels were removed, but after some months numbers of cockerels re-appeared (the figure was given as 200) and the farmer made no attempt to rearrange his farms so as to keep the cockerels further from the plaintiff’s property. The plaintiff brought an action for an injunction Held: A nuisance had been proved and an injunction should be granted”.
So that whether it is true or not that others keep poultry in the neighborhood or elsewhere in Lagos, what has to be appreciated is that there is no absolute standard in this matter of nuisance by noise or smell. It is always a question of degree whether the interference is so serious as to constitute a nuisance, and on the circumstance of each case.
The plaintiff also pleaded and gave it in evidence that he started to keep poultry over 5 years ago and occasionally. By this he explained that he kept a large stock for a straight period of 18 months and thereafter do away with them. After a lapse of 4 to 6 months he would bring new stock. It was not very clear from his evidence whether he meant that he started to keep poultry in the same house some 5 years ago. Although it does not matter much when he, in fact, started poultry; but I do not believe that it could be that far in the house because he himself testified that in July, 1969, in one of his conversations with the plaintiff when they were friendly, they both thought of what to do with the big gardens which they have on their hands and he decided to continue poultry. I suspect that the poultry was a recent venture. The more important matter, however, is that if by the suggestion that the poultry is being kept occasionally, and the nuisance, if there is one, there-fore, temporary, it is my judgement that the discomfort which the neighbour has to bear for a period of one year or more is such that the Court must intervene. Such discomfort or inconvenience cannot be said to be temporary or transient.
I have reached the conclusion, therefore, that the plaintiff is entitled to damages. As items of special damages the plaintiff claims as follows:
£ s. d.
(a) To Medical expenses retreatment of children 50 0 0
(b) To loss of business contacts 500 0 0
(c) To bills for eating out at restaurants and Hotels 26 0 0
(d) To cost of insecticide to reduce flies 4 2 0
In her address the plaintiff’s Counsel withdrew the claims for eating at restaurants but then, I cannot allow the other items as well because I am not satisfied that it is the act of nuisance that the defendant is guilty of that leads to the complaints in the stomach in respect of which the plaintiff’s doctor treated his children. As to the cost of insecticides, it was not proved that they were the flies from the poultry that the plaintiff was reducing rather than flies that abound all over. As for loss of business contacts the evidence of the plaintiff and his witnesses is so woolly that I have to reject it. The witness, Mr. Williams, said that as a result of his inability to contact the plaintiff in time for a particular business project, he estimated that the plaintiff lost £3,000 to £4,000, what a figure! Nevertheless, the plaintiff is entitled to damages and the fact that he suffers no ill health as a result of the nuisance is immaterial. Crump v. Lambert (1867) 15 L.T. 600. But this is sometime not easy to assess in terms of money and I will only do my best to award a sum in respect of the nuisances inflicted on him over the months. On this head which is limited to noise and smells I will award £100. As to the future the evidence of the defendant is not very clear. At one stage I understood him to say that although he re-erected the pens after they were broken down by the Lagos City Council and in the same place, he did not put any chicken in them along the boundary walls of the plaintiff’s house. And at another stage he seemed to be saying that he reduced the number of chickens to 100 following the institution of this action to appease the plaintiff. The principles on which the Court grants a discretionary remedy of injunction are clear. As Veale, J., said in Halsey’s case (supra) at page 160: “One, but only one, of these principles is that the Court is not a tribunal for legalizing wrongful acts by an award of damages”. I take note also of the conduct of the defendant in not pulling down the pens resting on the dividing wall when the plaintiff made a complaint to him. But I would have preferred to make a declaration that the defendant is not entitled to commit the acts complained of instead of granting an injunction had I been satisfied that the defendant has stopped the acts of nuisance since the commencement of the action.
Having regard to all the circumstances, I will grant the injunction as sought in the writ. But I wish to add that I will not regard it as a breach of this injunction without much more evidence if the defendant removes the pens which he has erected close to the boundary wall to the far end of the property on the opposite side. The injunction will also be suspended for 2 weeks subject to the defendant taking active steps to reduce the nuisance.
There will, therefore, be judgement for the plaintiff for an injunction as sought in the writ and £100 damages with costs fixed at 70 guineas cost.
Judgement for the Plaintiff: Injunction granted.