ADEDIRAN AND AKINTUJOYE (AS REPRESENTATIVES AND ON BEHALF OF ALL MEMBERS OF IRE-AKARI HOUSING ESTATE ASSOCIATION, ISOLO (PLAINTIFFS/APPELLANT)
v.
INTERLAND TRANSPORT LTD (DEFENDANT/RESPONDENT)
(1991) All N.L.R. 98
Division: Supreme Court of Nigeria
Date of Judgment: 13 December 1991
Case Number: SC 119/1987
Before: Muhammadu Lawal Uwais, Gcon, CJN; Adolphus Godwin Karibi-Whyte; Salihu Modibbo Alfa Belgore; Abubakar Bashir Wali; Olajide Olarewaju Olatawura, JJSC
ISSUES
Whether an association of residents could institute as a group, an action based on private nuisance?
Whether the nuisance complained of constituted public or private nuisance in the circumstances of the case?
Whether the common-law restriction on claiming for public nuisance at the relation of the Attorney-General still applied?
FACTS
The plaintiffs were residents of a housing estate in Isolo. A voluntary association had been formed by the residents. The defendant was a limited company trading in the transport business. Its workshop and parking facilities were in the housing estate and it was the plaintiffs' case that the defendant's vehicles - particularly lorries and long, heavy trailers had created a nuisance in the estate. Inter alia, the vehicles were said to block traffic, render the roads unsafe for children, destroy roads and generally cause a disturbing noise at all times of the day and night. The residents, with the leave of the court of first instance, brought the action on behalf of themselves and all the (other) members of the association.
Various questions of law arose: whether the disturbance complained of constituted the tort of a public or a private nuisance; if it were the former, whether the plaintiffs had the right to sue; whether the common law rule that restricts the right of individuals to sue on the ground of a public nuisance, should prevail despite the provisions of the Constitution (Section 6(6)(b) of the Constitution 1979); whether the suit was sustainable when brought in a representative capacity; and if so, whether all the interested and affected parties were properly before the court, in view of the fact that not every resident of the housing estate had been a member of the association.
The Court of Appeal had found that the nuisance complained of constituted a public nuisance, not a private nuisance, and that accordingly the plaintiffs were not properly before the court. It was wrong of the trial judge to award damages to the plaintiffs as an unidentified class of persons for damages that had not been specifically established.
The plaintiffs once more appealed against that decision. At the Supreme Court, the appeal was partly allowed to the extent that a case of private nuisance had been made out. But the appeal was also partly dismissed on the ground that the action cannot be maintained in a representative capacity.
HELD (unanimously upholding the appeal in part and dismissing it in part)
1. On the conflict between the common law rule relating to actions brought on public nuisance and Section 6(6)(b) of the Constitution
The restriction at common law whereby actions based on a public nuisance could only be instituted by the Attorney-General himself, or in his nominal capacity as a relator to those affected, was null and void, such restriction being in direct conflict with Section 6(6)(b) of the Constitution 1979:
".where the determination of the civil rights.of a person is in issue, any law which imposes conditions is inconsistent with the free and unrestrained exercise of that right,(and) is void to the extent of such inconsistency." Karibi-Whyte, JSC, at pages 115, 116.
2. On the prerequisites for an action based on nuisance in so far as public and private nuisance is distinguished
As the common-law distinction between public and private nuisance has been abolished by the Constitution, the prerequisites for an action based on nuisance are no longer determined by the distinction. Karibi-Whyte, JSC, at page 115.
3. On the existence of nuisance
It is sufficient for the competency of an action based on nuisance to present evidence that shows the existence of the nuisance complained of. Karibi-Whyte, JSC, at page 118.
4. On joinder of parties in instances of private nuisance
Where different persons claim different damages arising from the same nuisance, those persons cannot be joined in one action. Each of the persons so claiming has to prove the extent of his or her particular damages individually. The rule as to joinder is not intended to allow parties with no special interest, or who have suffered no special damage, the right to sue. It was therefore held, that the plaintiffs should not have been allowed to claim jointly and that damages could not be awarded to an unidentified class of persons where their individual claims had not been specifically made and established. Karibi-Whyte, JSC, at page 119.
5. On the requirements of a representative action
Where a representative action is instituted, the plaintiffs must share a common grievance and a common interest and the relief sought should be beneficial to all. Although a common interest had been shown here, the representative action should fail because the grievances of the affected individuals were distinct. Olatawura, JSC, at page 137.
6. On the weight to be attached to the inconvenience caused by individual actions
The inconvenience suffered as a result of individual actions being instituted in circumstances such as these, is outweighed by the requirements of law that for private nuisance separate actions must be instituted by each individual who claims damage as a result of such nuisance. Olatawura, JSC, at pages 136, 137.
For the Plaintiffs/Appellants: Chief Afe Babalola, San and A. Olukinmi; A. Olawoye; O.J. Fabunmi; T. Oyewole; T. Ivory and U. Akpan
For the Defendant/Respondent: O.M. Ayeni
The following cases were referred to in this judgment:
Nigeria
Adefulu v Oyesile (1989) 5 NWLR (Part 122) 377
Adesanya v President of the Federal Republic (1981) 1 All NLR 39
Amachre v Newington (1952) 14 WACA 97
Chapman v CFAO 9 WACA 86
Dilibe v Nwakozor (1986) 5 NWLR (Part 41) 315
Ejowhomu v Edok-Eter Ltd (1986) 5 NWLR (Part 39) 1
Flour Mills of Nigeria Ltd v Mr JW Akpabio & 12 others CA/L/26/28
Ipadeola v Showole (1987) 3 NWLR (Part 59) 18
L.C.C. v Olutimehin (1969) 1 All NLR 403
Ogamioba v Oghene (1961) 1 All NLR 59
Onyia v The Governor-in-Council & others (1962) WNLR 89
Oragbaide v Onitiju (1962) 1 SCNLR 70
Ransome-Kuti v Attorney-General for the Federation (1985) 2 NWLR (Part 6) 211
Senator Adesanya v President of the Federal Republic of Nigeria (1981) 1 All NLR
Smith v Mansi (1963) 1 WNLR 236
Foreign
Attorney-General v Garner (1907) 2 KB 480
Attorney-General v Gastonia Coaches Limited (1977) RTR 219
Attorney-General v Independent Broadcasting Authority (1973) 1 All ER 689
Attorney-General v Longan (1891) 2 QB 100
Attorney-General v PYA Quarries Ltd (1957) 2 QB 169
Attorney-General v St Ives R.D.C. (1960) 1 QB 312
Dymond v Pearce (1972) 1 All ER 1142
Dyson v Attorney-General (1911) 1 KB 410
Nuncaton Local Board v General Sewage Co (1875) LR. 20 Eqr. 127
R v Metropolitan Police Commr: Ex parte Blackburn [1968] 1 All ER 770
Smith & others v Cardiff Corporation (1954) 1 QB 210
The following statutes were referred to in this judgment:
Nigeria
Constitution of the Federal Republic of Nigeria 1979: Ss 1(1), 6(6(b), 33, 236, 239, 274(4)(iii)(b)
Constitution (Suspension and Modification) Decree No. 1 of 1984: S 15
The following rules were referred to in this judgment:
Nigeria
Ogun State: Order 8, Rule 9
High Court Rules, Lagos State 1972: Order 13 Rule 14
Rules of Supreme Court, England 1985: Order 15 Rule 4(2)
Town and Country Planning Law Cap. 133 Law of Lagos State, Vol. 7
The following books were referred to in this judgment:
Halsbury's Laws of England (3ed) Volume 28 at pages 122 and 128, paragraph 158
Public Nuisance by Dennings LJ
Karibi-Whyte, JSC (Delivered the Leading Judgment):- On 3 February 1986 the Court of Appeal, Lagos Division, by a majority of 2:1, set aside the judgment of Ayorinde, J, of the High Court of Lagos State delivered on 21 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 long trailers. They use their premises in the Estate as their workshop and for parking the trailers. Consequently there is considerable traffic of these long heavy trailers in the Estate, throughout the day, and for most part of the night. The many drivers employed to drive these vehicles, also park the trailers in the roads of the Estate making the roads virtually impassable. In many cases they block the access roads to the houses of the residents. The complaint of the residents of the Estate is that the heavy trailers have rendered the roads unsafe for children, destroyed the roads and knocked down electric poles. The disturbing noise made by the drivers in the process of returning to park the vehicles, and taking off early in the morning constitute, in addition to the other inconvenient activities, the nuisance complained of. After several protests to the first defendant, the Residents, who are the plaintiffs brought this action.
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, dusts and obstruction of the roads 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 first 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 the 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 approved Lay-Out Exhibit 'A' was taken over by Ikeja Real Estate Company Ltd. The entire approved Lay-Out as confirmed by PW1 and PW2 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' (sic). 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 any time 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 damaged road, telephone poles, water pipes and made big potholes on the untarred 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:-
"(1) 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.