(HIGH COURT)

ABDEL GADIR HAG EL SAFI vs. SUDAN OIL MILLS & Co. and Others

(HC-CS-130-1956)

Principles

·  Tort-nuisance-deleterious matter carried by wind and rain onto Plaintiff's land-Municipality permitting dumping of matter on their land-ignorance of facts causing nuisance joint Tortfeasors

·  The Defendants were manufacturing soap and oils etc., for which they used cotton seed, caustic soda and other chemicals. The Municipality allowed them to dump refuse onto their land which adjoined that of the Plaintiff. The Plaintiff complained that as the result of wind and rainwater some of the refuse was carried to his land causing damage. Steps taken to prevent this proved so far unsuccessful..

Held: (I) There was here a nuisance. -

(2) The permission of the Municipal Authority did not afford a defence. It was a mere licence and cannot deprive the Plaintiff of his rights at law. Only an Act of the Legislature could do this.
(3) Ignorance of the facts constituting the nuisance was not established as a defence.
(4) The Defendants were jointly And severally liable, since the damage was caused by the joint disposal of the 
 

Action

The Defendants are three factory owners who are manufacturing soap and oils etc. for which they use cotton seed .and caustic soda as well as other chemicals. Large quantities of fluid and also cotton husk are thrown out as refuse. The Defendants applied to the Municipal Authority of Khartoum North where to throw this refuse, and were told to dispose of it on lands which separated their lands from those of the Plaintiff. Partly burnt cotton husks were blown by the wind onto the Plaintiff’s land and rainwater washed some of the fluids onto it. As a result the Plaintiff was unable to grow cotton and had an alternative crop of durra ruined. Although the Defendants complied with all the requirements imposed upon them by the Municipal Authority they were unable to prevent the damage.

Advocates            A.M. Abdel Wahab …………for Plaintiff

Ahmed Gumaa …………………………...for Defendants

Osman el Tayeb P.J. referred to the facts and continued

In the circumstances it is clear that damage has been caused to Plaintiff’s land as a direct consequence of Defendants’ act by the substances emanating from their factories and disposed of near Plaintiff’s land.

The Advocate for Defendants raised some points against liability of the Defendants for any damages. I have to deal with them as far as  they are necessary for the decision of the case. He states that the act of the Defendants was authorized by the Municipal Authorities, and therefore any nuisance if inevitably involved in that act is not actionable. The factories in the process of their work have some refuse to be disposed

of. They used to throw or drain those substances to a place as far as possible from the residential area or at least away from the factories themselves. What I understand from the evidence of the Town Clerk of the Municipality, is that this was made with their knowledge and approval. This was not authorization,. the Municipal Authorities were trying on the one hand to see the refuse and unwholesome substances disposed of in a sanitary way and secondly, to help the Defendants find a solution for the difficulty of disposal of the substances. The Defendants are still unable to provide a proper and suitable system for the disposal of their waste waters. The present system is that of earth drainage, taking the water to absorption beds. When a bed is filled up the water is directed to another, and in this way in a few years they

will fill every inch of land in that vicinity with a substance like tar which remains on the surface of the land neither absorbed by the soil nor evaporated by the sun. The Town Clerk described this, as unsatisfactory and he is pressing for the provision of a healthy system of drainage.

However according to English Law, the authority that may justify a nuisance is the statutory authority given by an act of Parliament for the performance of certain public duties, but trading companies as firms are merely given licences by the State to follow their trades, at the same time taking the risk of any damage that they may cause to any individual. The Defendants are ordinary companies or firms granted licences by the Sudan Government to conduct their business, with not the least protection for doing acts causing damage to others. I should make it clear that the Municipal Authorities cannot authorize the Defendants to cause damage to others.

The second point is that the Defendants did not know that they were creating a nuisance. Taken as a point of fact their allegation is not proved. They knew that those substances emanating in big quantities from the factories contain caustic soda and other chemicals, and that, admittedly, the soda was poisonous. They must know that these would be harmful to crops, and also to the soil. The Plaintiff’s land was clearly agricultural land, and from placing these substances so near to it, it can clearly be seen that parts of them would be washed into it. This can similarly be said as to the cotton seed husks. There would be a defence if Defendants had no knowledge that those substances contained some elements harmful to crops or to the soil in any way or that the place they used for disposal was not land used for agriculture nor privately owned, or that they failed to acquire such knowledge after using reasonable care to discover these facts. The cases cited by the Advocate for Defendants are clear on the point where ignorance of the facts constituting a nuisance  was established, and so they do not apply to this case (see Clerk &Lindsell — 10th edition p. 558).

The act causing damage was done by their joint disposal of refuse and drainage of waste water coming out from the factories of the three Defendants and so the three of them are joint tortfeasors, and liable for the damages jointly and severally.

[court  of Appeal Abu Rannat C.J., Soni and Hassib JJ. upheld this judgment but varied amount of damages. (AC/APP/36/1956)]