“Nigerian Law of Torts”, a public nuisance is committed where a person carries on some harmful activity which affects the general public or a section of the public, whereas the law of private nuisance is designed to protect the individual owner or occupier of land from substantial and unreasonable interference with is enjoyment thereof. The remedies available to one who complains of a nuisance are: damages, an injunction to restrain further nuisance and abatement.
CATEGORIES OF PRIVATE NUISANCE
Private nuisance falls into three categories:
a)Physical injury to the Plaintiff’s property
b) Substantial interference with plaintiff’s use and enjoyment of land
c)Interference with easements and profits
In determining whether nuisance has occurred under any of the three categories above, the law endeavours to strike a balance between the right of the defendant to use his land as he wishes and the right of the plaintiff to be protected from interference with his enjoyment of land. In striking the balance, the law considers whether
- The injury or interference complained of will not be actionable unless it is (a)sensible (in the case of material damage to land) or (b) substantial (in the case of interference with enjoyment of land)
- The defendant will not be held liable unless his conduct was unreasonable in the circumstance.
Nuisance is not actionable per se and damage must normally be proved by the plaintiff. For abatement of nuisance, the plaintiff must show sensible material injury to his property or substantial interference with his enjoyment of his land. However, the Plaintiff need not prove damage where on the facts, damage can readily be presumed or where the defendant interferes with an easement or right of access of the plaintiff.
ABATEMENT OF PRIVATE NUISANCE
Abatement is a remedy of self-help which entitles a person who is affected by a nuisance to remove it, e.g. the occupier of land may cut off the branches of a tree which overhang from adjacent land. This remedy is not favoured by the courts and is virtually obsolete, except where the nuisance is trivial.
Anybody may abate a public nuisance. The injured party may abate a private nuisance, which is created by an act of commission without notice to the person who committed it. When the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without notice.
In conclusion, it is noteworthy that the abator of a private nuisance cannot remove the “materials” further than is necessary, nor convert them to his own use. And so much only of the thing as causes the nuisance should be removed; for example, if a house be built too high, only as is too high should be pulled down.
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