Recent studies suggest that as many as 999 in 1,000 Nigerians are pretty tolerant of actionable nuisances that take place around them. And out of the 1% that are not tolerant, only 0.02% of them seek legal redress.
Paucity of judicial precedents on the subject (??)
Strike that: more brazen acts of nuisance from places of worship, factories, refineries, schools, other business premises and last but not least, homes.
Well, we’re not concerned ’bout that now. We’re ’bout to consider whether the death of a plaintiff would abate an action in Nuisance. Whether the maxim: “Actio personalis moritur cum persona” applies to the Tort of Nuisance.
First off, a personal action is an action which does not survive the parties. The action dies with the parties. Since nuisance is an injury to the estate of a Plaintiff, the cause of action therefore survives his death.
In MBADINUJU V. EZUKA (1994) 8 NWLR (PT.364) 535, the Supreme Court per Onu, J.S.C. at page 565 H, held thus:
“An action for trespass to land (note that trespass and nuisance are twin brothers as we shall see later) is not such a strictly personal cause of action as to abate on the death of the deceased plaintiff since a trespass to land committed during a deceased person’s lifetime is an injury to the estate of the deceased, the cause of action therefore survives his death”.
The Court in IFEJIKA V. OPUTA (2001) 11 NWLR (PT.725) 583; LPELR-CA/E/129/2000 held:
“I should add here that the offences of trespass and nuisance are twin brothers; what applies to one applies to the other. As a matter of fact, the same set of facts could amount to either trespass or nuisance or both. So the Supreme Court’s ratio given above (MBADINUJU V. EZUKA supra) applies equally to trespass and nuisance”.
In B.O.N. LTD. V. MURI (1998) 2 NWLR (PT. 536) 153 C.A, the Court held per Edozie, J.C.A. thus:
“The common law maxim ‘actio personalis moritur cum persona’ which means that a personal action dies with the person has been modified by statute. The present position is that on the death of any person all causes of action subsisting against or vested in him shall survive against or as the case may be for the benefit of his estate. But there is no survival of cause of action for defamation or seduction or for inducing one spouse to leave the other or for damages for adultery. In the instant case, where the respondent was substituted for his late father who had testified in his case before his demise, the damages awarded in favour of the respondent for defamation is unsustainable”.
In ADEBISI V. SAKA (1995) 8 NWLR (PT. 414) 475 C.A., the issue was whether in the circumstances of the case (which was a Chieftaincy case) the application for substitution of the dead 1st Respondent should be granted by the Court of Appeal. In the course of the appeal the Court of Appeal had to consider section 15(1) of the Administration of Estate Law Cap. I. Laws of Ogun State, 1978 which provides as follows:
“Subject to the provisions of this section, on the death of any person after the commencement of this Law, all causes of action subsisting against or vested in him shall survive against or, as the case may be for the benefit of his estate:
Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”
It should be noted that Anambra State also has the Administration and Succession (Estate of deceased persons) Law Cap. 4 Laws of Anambra State, 1991, which also has provisions similar to those in S. 15(1) of the Ogun State’s Laws extracted above.
The Court in IFEJIKA V. OPUTA (supra), after a careful consideration of the cases of B.O.N. LTD. V. MURI (supra) and ADEBISI V. SAKA (supra) held thus:
“In all the cases noted above, ‘personal actions’ have been listed to include only the following:
(c) Inducing one spouse to leave or remain apart from the other
(d) Claims for damages on the ground of adultery.
These are personal actions which do not survive the parties, and Nuisance is not one of them.”
Thus, finally, the Court in IFEJIKA V. OPUTA (supra) held:
“On the totality of the foregoing, it can now be said without fear of contradiction that “Nuisance” is not a personal action.” — Per AKPABIO, J.C.A.(Pp. 13-16, paras. G-F)
See also the following cases:
Ebongo v. Uwemedimo, (1995) 8 NWLR (Pt.411) 22 C.A;
Inua v. Nta (1961) All NLR 576.
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