Is Nuisance A Personal Action? — Odirachukwumma Stanley Emejulu, Esq.

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.
The result?
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:
(a) Defamation
(b) Seduction
(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.

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.
The result?
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:
(a) Defamation
(b) Seduction
(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.