J. O. B. KARUNWI (APPELLANT)
v.
O. OKUNAIYE (RESPONDENT)
(1963) All N.L.R. 613
Division: High Court of Lagos
Date of Judgment: 21st October, 1963
Case Number: (Appeal No. 66A/63)
Before: De Lestang, C.J.
Appeal from the magistrate's court.
The parties are owners of adjoining premises separated by means of a wall built by the defendant on his own land. He later built latrines and bathrooms against the wall. Subsequently he raised the level of his premises by filling in with earth to a height of about four feet against the wall. During the rainy season the wall collapsed and damaged the plaintiff's premises. The reason for the collapse of the wall was that it was too weak to bear both the weight of the constructions and the thrust transmitted by the earth banked against it. The plaintiff there upon brought this action against the defendant for damages in the Chief Magistrate's Court alleging negligence and nuisance.
The Chief Magistrate, dismissing the plaintiff's action, held that as the acts of the defendant amounted to a natural user of his property they could not constitute negligence. He did not deal with the question of nuisance apart from the rule in Rylands v. Fletcher holding that this rule did not apply because the defendant has not brought any dangerous thing on this land.
The plaintiff appealed to the High Court. On appeal it was submitted that on the facts the liability of the defendant both in Negligence and in Nuisance was established.
HELD:
(1) An occupier of land is liable in Negligence for injury caused to third parties whether they be his neighbours or not by negligently making a natural user of his land. In this case, the defendant was negligent and so liable to the plaintiff because he should have known that the wall was not strong enough or have taken steps to ascertain whether it was or was not.
(2) To give rise to a claim in negligence, it is not necessary that the consequences of the negligence should appear immediately, provided the damage was directly attributable to the negligence.
(3) No one is liable for nuisance unless he either created it or continued it after he had knowledge of it or omitted to use reasonable care to discover its existence.
Appeal allowed: Decision of lower court set aside and finding that defendant liable to plaintiff substituted: Case remitted to trail Court for assessment of damages.
Cases referred to:-
Rylands v. Fletcher [1868] L.R. 3 H.L. 330.
Hughes v. Percival [1883] 8 A.C. 443; 49 L.T. 189; 52 L.J.Q.B. 719.
Ilford U.D.C. v. Beal [1925]1 K.B. 671.
St. Anne's Well Brewery Company v. Roberts and others 140 L.T.R 1.
APPEAL from the magistrate's court.
Coker for the Appellant.
Odunfalu for the Respondent.
De Lestang, C.J.:-This is an appeal from the decision of the Chief Magistrate's Court, Lagos, dismissing the plaintiff's action. The material facts are very simple and not in dispute. The Parties are owners of adjoining premises separated from each other by means of a 6 foot high wall. That wall was built in or about 1960 by the defendant along the boundary. Consequently it is not correctly described in the proceedings as a party wall since it stands on the defendant's land and belongs to him. Be that as it may, it was constructed of sand blocks and four inch cement blocks. Afterwards the defendant built two latrines and two bathrooms against the wall so that it formed the back wall of those constructions. Subsequently the defendant raised the level of his premises by filling in with earth to a height of four to five feet against the wall. On the 6th June, 1961, during the rainy season, the wall collapsed on plaintiff's premises damaging them. The reason for the wall tumbling down was that it was too weak to bear both the weight of the constructions I have mentioned and the thrust transmitted by the earth banked against it.
The plaintiff brought an action for damages in the Chief Magistrate's Court alleging negligence and nuisance on the part of the defendant. He also relied at the trial on the rule in Rylands v. Fletcher.
The learned Chief Magistrate held that as the acts of the defendant amounted to a natural user of his property they could not constitute negligence. He did not deal with the question of nuisance apart - from the rule in Rylands v. Fletcher holding that that rule did not apply because the defendant had not brought any dangerous thing on his land. In this appeal it is no longer contended, and rightly so in my view, that the rule in Rylands v. Fletcher applies. The decision of the learned Chief Magistrate on the question of negligence is, however, attacked and it is contended that on the facts the liability of the defendant both in negligence and nuisance was clearly established.
In my view this criticism is well-founded and the decision of the learned Chief Magistrate cannot be supported. I know of no rule of law exempting an occupier of land from the consequences of his acts or omissions solely on the ground that he was making a natural and consequently lawful user of his land.
As regards negligence it is not difficult to imagine cases where an occupier of land would be liable for injury caused to third parties whether they be his neighbours or not by negligently making a natural user of his land. For example, an occupier of land who erects or pulls down a building without proper care and thereby causes physical injury to a third party or damage to an adjoining property will clearly be liable in negligence for the damage caused. This proposition is amply supported by the decision in Hughes v. Percival 1883 8 A.C. 443. In that case there were three houses belonging to A.B. and C. respectively, B.'s house being separated from the houses of A. and C. by party walls. B.'s house was pulled down for the purpose of rebuilding and the new building was tied into the party wall between A.'s house and B.'s house. The work was negligently done as a result of which the new building which was nearly finished fell and dragged down A.'s house with it. B. was held liable to A. because he owed him a duty to see that reasonable skill and care was exercised in the operations.
In the present case, the learned Chief Magistrate, if I have understood his judgment correctly, was of opinion that the defendant had been negligent in building on and banking earth against a wall which was not solid enough to bear the weight and thrusts thereby occasioned. I see no good reason to disagree with his finding, which the evidence in my view fully justifies. As it was the defendant who built the wall and did the other acts he should have known that the wall was not strong enough or have taken steps to ascertain whether it was or not. It was contended for the defendant that since the wall did not collapse when the buildings were being erected or the earth was being banked against it negligence does not arise. I am unable to agree. To give rise to a claim in negligence it is not necessary that the consequences of the negligence should appear immediately. As long as the damage is directly attributable to the negligence it is sufficient.
As regards nuisance, the learned Chief Magistrate as I have pointed out before, did not go outside the rule in Rylands v. Fletcher. That rule, however, merely deals with one species of nuisance, namely nuisance caused by the escape of dangerous things brought on to the land. It may well be that the rule in Rylands v. Fletcher does not apply in the case of a natural user of land. There are, however, many other species of nuisance outside the rule in Rylands v. Fletcher where natural user is not per se a defence. Indeed, a private nuisance is usually caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land such as when they cause a physical damage to his neighbour's land or buildings. There can be no doubt that the falling of the wall in the present case was a nuisance and the only question is whether the defendant is liable for it. It is well-known that no one is liable for nuisance unless he either created it or continued it after he had knowledge of it or omitted to use reasonable care to discover its existence. Ilford U.D.C. v. Beal 1925 1 KB 671; St. Anne's Well Brewery Company v. Roberts and others 140 L.T.R. 1. In the latter case Scrutton, L.J., said:-
"It appears to me that the cardinal thing which would have to be proved to establish any liability against anybody would be knowledge of the defect which ultimately resulted in the fall of the wall and or failure to acquire that knowledge because he had failed to use reasonable care to ascertain what he should have ascertained."
It was strenuously argued by Mr Odunfalu that the defendant was not aware of the existence of the nuisance. In my view this contention is unacceptable. It was the defendant himself who erected the wall It was he who built on it and banked earth against it. It was established that the wall was not only not strongly built but also not strong enough to take the strain of the constructions and the filling-in. If the defendant was unaware of all this his lack of knowledge was due to his own failure to use reasonable care to discover the true position. In my view the defendant created the nuisance and is consequently liable for it.
This appeal accordingly succeeds and the decision of the court below is set aside together with the order for costs. There will be substituted a finding that the defendant is liable to the plaintiff for the damage to his premises and the case will be remitted to the learned Chief Magistrate to assess those damages and enter judgment for the plaintiff against the defendant accordingly. The appellant will have the costs of this appeal which I assess at forty guineas.
Appeal allowed: Decision of Lower court set aside and finding that defendant liable to plaintiff substituted: Case remitted to trial
Court for assessment of damages.