(COURT OF APPEAL)

AHMED HAM ID v. AMOUNA HASSAN

AC-REV-184-1969

Principles

  Nuisance—Right to commit nuisance—Time runs from the day when nuisance began—Not from the day the cause of nuisance began

A person can acquire the right to commit a private nuisance by way of prescription. The time of acquirement of such right runs from the day when the nuisance began and not from the day when the cause of nuisance began.

Advocate: Salah Mustafa ……………………………………. for the applicant

Judgment

Dafalla El Radi Siddig J. June 1, 1970 : —Applicant is challenging an order by His Honor the Province Judge, Khartoum Circuit, whereby he upheld a decree by District Judge, Khartoum. The facts are simple.

Respondent sued applicant on the ground that applicant invaded her privacy and caused her a nuisance by opening his door and windows onto her premises. Both courts above-mentioned found for respondent. Hence this revision.

It is contended for applicant that the District Judge in Khartoum has no jurisdiction since the land in issue is in Khartoum North. In reply it is stated for respondent that by virtue of the Civil Justice Ordinance, s. 45, the Khartoum District Judge has the jurisdiction to hear the suit. With due respect I failed to convince my mind to agree with both counsel. The Civil Justice Ordinance, S. 45, is irrelevant to the dispute. The appropriate section is the Civil Justice Ordinance, s. 46. The said section embraces Khartoum District Court as having jurisdiction to determine suits pertaining to land in Giraif, simply because the section speaks of the province and not of lesser administrative divisions. I agree with His Honor the Province Judge that it would have been reasonable and more appropriate to bring the action in Khartoum North; but bringing it in Khartoum does not vitiate or nullify the proceedings.

It is asserted for applicant that respondents’ premises had been built only recently while the door and windows sought to be closed had been there for forty years. It is stated in reply that the limitation period starts to run against respondent from the date of building his premises which is two years. To put the statement of applicant in a legal context he is trying to plead that coming to the nuisance and the prescriptive period defeat the claim for the easement.

It is settled law that coming to the nuisance is no defence; since the decision in Elliotson v. Feetham (1835) 2 Bing.N.C. 134, the above rule had been established and ever since it had either been cited with approval or postulated in different words.

In so far as prescription is concerned the authorities are clear in that time starts to run against the plaintiff only when he is so affected by the nuisance. See Gale, Easements (13th ed., 1959), p. 300. Thus since the plaintiff built the premises only two years ago time starts to run against him as from such a date. On the same point, see also Sturges v. Bridgman (1879) 11 Ch.D. 852.

It is contended for applicant that respondent constructed her house on a public road—land which does not belong to her. Having perused the record of the suit it shows the following facts. Respondent had been requested on her plaint to file a registration certificate of her land. The Sheikh stated that the land where respondent’s house is, had been a public road for forty years. Respondent’s agent stated that applicant is the son-in-law of the Sheikh who is taking sides. It seems to me that if applicant’s allegation turns out to be right it would afford him a valid defence. If the area adjacent to his premises is dedicated for being a public road the respondent’s premises should not be there at all and hence the problem at issue would not have arisen. I wonder why the learned District Judge took the statement of respondent’s attorney for granted in that the Sheikh is party pre. Whether respondent is the owner of the land or whether it is a public road can be established by evidence independent of the Sheikh’s notice, being a question of fact. The lower court should have framed an issue on the point being determintal and of paramount significance in determining the real dispute inter Se.

To sum up, the law is clear on all the pleas raised by applicant. The only point that remains is the question as to whether the land where respondent built her house is a road. To my mind the suit should be remitted to the District Judge to determine that point appropriately.

No order as to costs.

Tawfik Abdel Mageed J. August 25, 1970 : —I concur.

The learned advocate for the applicant raises three main grounds for his application for revision submitted to our court. The three grounds are these:

1. The Court of District Judge, Khartoum, is incompetent to try the suit in question because the land in dispute is situated in Khartoum North.

2. The applicant has acquired by prescription the right to commit that private nuisance.

3. That the respondent in fact built her premises on a public road and hence she does not own that land.

As to the first point raised by the learned advocate for the applicant I would like to draw his attention to the decision of this court in the recent case of Au Shareif v. Idris Omer Nasir, AC-REV-109-1969 (1969) S.L.J.R. 161. In that case the Court of Appeal said with reference to the Civil Justice Ordinance, s. 46, that:

“the fact that Khartoum Province is divided into courts of limited jurisdiction as to areas, does not per se rob any one of these courts of its jurisdiction conferred upon it by the express provision of the statute “—Arab Insurance Company v. Musa Fadl El Mulla and Others, AC-REV-206-1968, (1969) S.L.J.R. 136.

It is quite true that a person can acquire the right to commit a private nuisance by way of prescription. To prove such right the claimant should prove that the nuisance complained of has been continuously in existence for twenty years, (i) openly and (ii) to the knowledge of the owner of the servient tenement—Liverpool Corporation v. Coghill (H.) & Son Ltd. [1918] 1 Ch. 307. The time for the acquirement of such prescriptive right runs from the day when the nuisance began and not from the day when the cause of the nuisance began—Sturges v. Bridgman, supra. In the case subject of this revision the time for the prescriptive right to commit the nuisance ran from the day when the respondent built her house and not from the day when the applicant built his own. Hence this is a hopeless defence to a claim raised by the respondent- plaintiff.

Finally, I find myself in full agreement with the opinion expressed by my colleague Dafalla J. that it is not clear whether the land whereon the respondent-plaintiff has built her house is a road.

This suit should therefore be remitted to the same court to decide that issue of fact.