Anuisance is a wrong done to a person by another unlawfully disturbing the former in his enjoyment of his property or in some sense in the enjoyment of a common right. Nuisance is essentially a continuing wrong that is to say, it implies the establishment or maintenance of a state of things on one’s own land to the continuing hurt or annoyance of a neighbour.
A continuous flow of foul water from one land to the other or a mill creating noise or emanates smoke are continuous nuisance. It should be observed that causing or allowing the escape of deleterious thing on a single occasion only does amount to continuous nuisance.
The following are the essentials of nuisance:
There must be interference with the use and enjoyment of land or immovable property or some right over it.
The plaintiff must show title to the thing with which interference takes place.
Damage.
Under the first two items, it must be established that the defendant has caused injury to property and he has interfered with the plaintiff’s personal comfort. However, there is a distinction between (1) and (2). As to (1), it is enough if the defendant’s conduct is unreasonable having regard to the time, locality and circumstances. As to (2), a person must in the interest of the public, submit to a reasonable amount of discomfort.
It may be a public nuisance or private nuisance, but the person who is responsible for the continuing nuisance should take steps to abate such nuisance, otherwise affected persons may seek legal remedy. The duration of the defendant’s activity is one factor which may determine unreasonableness.
Distinction between actions for negligence and nuisance
Considering the elements of negligence and of nuisance, the actions for negligence and nuisance differ in the following respects:
In negligence, the plaintiff must prove a duty of care, but in nuisance he needs only proof of an injury.
In negligence the question is whether the defendant has breached the duty of care. Although the absence of reasonable care makes the defendant liable but in nuisance, yet the exercise of duty of care does not necessarily absolve him from liability.
Contributory negligence is a matter considered in negligence, but it is not an independent defence in nuisance. It only comes in as one factor in the general test of reasonableness.
The test of nuisance is whether the user was reasonable or not and this is to be ascertained by what the defendant himself, has to tolerate in similar circumstances. Regard should be had to the character of the neighbourhood and the pre-existing circumstances. Once the character of a locality is fixed, it is comparatively easy to fix the standard of comfort.
There seems to be difference in principle between the English law and Roman-Dutch law on the subject of nuisance. A large number of acts in English law – are actionable without proof of negligence. Thus, a person who makes an excavation in the vicinity of a public road would, in English law, be liable on the basis of nuisance, but in Roman- Dutch law, however, the liability of the defendant rests on negligence. Thus, the difference between the English law of nuisance and the Roman- Dutch law is proof of negligence.
Where an overhanging bough falls and causes damage to a passer- by, the owner becomes liable under the English law for damages on the ground of nuisance. (Noble v Harrison), whereas under the Roman- Dutch law his liability depends on proof of negligence. In Jinasena v Engletina, it was held that in the absence of proof of negligence the defendants were not liable in damages.
Classification of nuisance
Nuisance may be classified into two types: namely, (a) public nuisance and (b) private nuisance. A public nuisance is a crime while private nuisance is only a delict. A public nuisance is one which materially affects the reasonable comfort and convenience of life of a class of citizens or of the society who come within the sphere or neighbourhood of its operation; the question whether the number of persons affected is sufficient to constitute a class is one fact in every case; and it is sufficient to show that a representative cross-section of that class has been so affected for an injunction to issue. The only difference between these two is in the quantum of annoyance caused. (Nair v Costa (8.L.Rec 89).
The basic differences between public and private nuisance are that although claims (a) for a private nuisance and (b) for a particular damage resulting from a public nuisance have many features in common, yet the rules relating to them are not identical.
To succeed in private nuisance, the plaintiff must have an interest in the land and consequently a non-occupier of the land cannot recover damages for personal injuries, whereas in public nuisance, the plaintiff need have no interest in the land and may recover for injury to the person or property.
Private nuisance
A private nuisance is one which does not affect the public generally. It is a species of civil wrong, which may be defined as any unreasonable use of land which injuriously affects the use or enjoyment of neighbouring land. It is an act by which some unauthorised user of a man’s owned property causing damage to the property of another or some act whereby the ordinary physical comfort of human existence in such property is materially interfered with.
A private nuisance may occur to the person or property of another or it may be mixed being in part productive of personal discomfort or annoyance to the plaintiff and in part causing depreciation in the value of the property occupied by him. The liability of nuisance is independent of negligence. In the case of private nuisance, the remedy available to the party affected is to institute an action in tort or delict and obtain an injunction if the violation is continuing one and damages where harm has already been suffered. In such instances, provisions contained in the Code of Criminal Procedure Act of 1979 cannot be made use of to prosecute the culprit.
One all case relating to private nuisance is De Silva v De Silva. In this case, the complainant alleged that the respondent had a coconut tree hanging over the roof of the complaint’s house and that branches and nuts continuously fell on to the roof of the complaint. The Magistrate issued an order of removal directing the respondent to remove the tree. It was held that the order of the Magistrate was wrong as the nuisance complained of it was a private nuisance. A similar decision was made in the case of De Alwis v Abdul Carder. Where the complaint was that the tree was hanging over the school. Sections 105- 113 of the 1898 Code dealt with this aspect. When the administration of justice law came into operation, sections 60 and 61 provided for the procedural mechanism.
Public nuisance
A public nuisance is a wrong which affects the public at large or some considerable class of them which is a species of criminal offence. This term has not been statutory defined. However, on a broad basis it could be defined as an act or an illegal omission which causes some common injury, danger or annoyance to the public or the people in general, who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have the occasion to use any public right (Chapter XIV of the Penal Code, section 261).
In Muttiah v Meera Meydeen, it was held that a person who refuses to allow or obstructs the drawing of water from a public well would commence a public nuisance within the meaning of section 261 of the Penal Code of Ceylon.
Sources of public nuisance law
All three local government statutes embody provisions to deal with nuisance issues. For the prevention of nuisance, action may be taken under section 136(a) of the Municipal Councils Ordinance No. 29 of 1947 as amended by Act No. 42 of 1979 and Act No.39 of 1986. Such action may also be taken under section 127 D of the Urban Councils Ordinance No.61 of 1939 as amended by Act No.48 of 1984. Such action may also be taken under section 106 of the Pradeshiya Sabhas Act No. 15 of 1987.
In addition, the duties of conservation of the environment have been entrusted with local governmental institutions in accordance with the powers delegated under section 26 of the National Environmental Act of 1980 as amended. It is also a duty of the local government institutions to periodically carry out careful inspection in their authorised areas and ascertain the preventable offences. Irregular activities conducted by owners of industries revealed during these inspections or by public complaints may be prosecuted under the National Environmental Act in the Magistrate’s Court.
The removal and abetment of public nuisance is also provided in the Nuisance Ordinance No. 15 of 1862 and the Police Ordinance. Sometimes referred to as ‘statutory nuisance’ all these involve instances where governmental and local governmental institutions are required to take various measures in the face of public nuisance. Chapter XIV of the Penal Code of 1883 deals with offences affecting the public health, safety, convenience, decency and morals and section 261 under this Chapter, defines what is meant by public nuisance.
It says: “a person is guilty of a public nuisance who does any act or is guilty of any legal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasioned to use any public right. A public nuisance is not excused on the ground that it causes some convenience or advantage.
Chapter IX of the Code of Criminal Procedure Act No. 15 of 1979 deals with judicial orders pertaining to removal or abatement in cases of nuisance. While sections 98- 103 identify the procedure involved in cases of ‘public nuisance’, sections 104 and 105 speak of the power to grant injunctions in urgent situations. Similar provisions were available under sections 105- 114 of the Criminal Procedure Code No. 15 of 1898. Thereafter during the period that the Administration of Justice Law (AJL), was in operation, sections 60 and 61 of the AJL dealt with this aspect. One significant feature in the AJL was the specific provision that was contained in the proviso to section 60 which specifically stated that ex-parte orders could be made in the case of an emergency.
The jurisdiction to make the orders contemplated in Chapter IX of the present Code of 1979 is a special jurisdiction conferred on the Magistrate’s Court. Ordinarily, in terms of section 9 of the Code, a Magistrate’s Court has the jurisdiction to hear and determine offences identified under the Code or any other law. The jurisdiction of such a court is not limited to the hearing of criminal matters but also extends to special areas that are identified by the Code. The invocation of the jurisdiction set out in Chapter IX of the Code does not necessarily entail the commission of any offence. The primary purpose of this jurisdiction is to permit a Magistrate’s Court to make certain orders of a preventive nature.
However, there may be certain instances where the continuance of any action prohibited under section 98 of the Code may amount to a criminal offence. (See Chapter XIV of the Penal Code, Section 261 – 264, 270,271, 276, 277-279 and 283). It must be noted that there is no provision in the Code of Criminal Procedure Act of 1979 which gives jurisdiction to a Magistrate to entertain an application for relief against a private nuisance.
A private individual can bring an action for damages or for an injunction in respect of a public nuisance if he can prove that he suffered some special damage, ie., some injury or damage beyond that which has been suffered in common by all other persons affected by the nuisance.
Proceedings before the Magistrate’s Court
The proceedings before the Magistrate’s Court relating to the commission of a public nuisance under the Code of Criminal Procedure Act may begin in the following ways.
By way of a private plaint filed under section 136(1) (a) of the Code,
By way of a report filed under section 136(1) (b) of the Code,
By way of information submitted to court.
In the above first two situations, it is necessary that a criminal offence is revealed in the private plaint or the report. This is an essential requirement in every case instituted under sections 136(1) (a) and (1) (b). This arises in view of the fact that the language in section 136 directly refers to the disclosure of an offence. Hence if action under section 98 is instituted under these sections, it is essential that the Plaint or the Report as the case may be, reveals an offence committed within the jurisdiction of the court. In these instances, the Plaint or the Report could refer to the offences mentioned earlier or to any other similar offence under a statute or a regulation and made cognisable by a Magistrate’s Court.
Situations for making applications to court
Scope of Section 98
Section 98 of the Code identifies several situations where an application could be made to a Magistrate’s Court for relief. The jurisdiction of the Magistrate’s Court under section 98 is limited to the prevention of public nuisances and that it does not extend to the suppression of private nuisances. In Sinna Gura v IP Karawanella, it was alleged by the informant that the respondent had a tree in his land which was likely to fall down and cause damage to the complainant. It was held that the powers of this section cannot be utilised in such an instance since the act complained of was a private nuisance in nature (See also Ratwatte v Owen). To be continued next week
