Principles

·  Tort—Nuisance—Blocking of Khor, resulting in flooding of neighbouring housing— Negligence

·  Nuisance—Liability of Town Council for nuisance created by members of public— Failure to provide latrines in market—Khor used as a latrine

    The defendant Council constructed a culvert in the passage of a Khor adjoining the plaintiff’s house; the culvert was too narrow with the result that the Khor was obstructed and rain-water overflowed into the plaintiff’s premises. The defendant Council also established a market near plaintiff’s house and failed to provide latrines, with the result that people from the market used the Khor instead. In an action on these facts, Held: (i) the defendant was liable in nuisance and negligence for causing the overflow of water. Sedleigh-Denfield vs. O’Callaghan [1940] A.C. 880 followed. Rylands vs. Fletcher (1868) L.R. 3 H.L. 330 distinguished. (ii) That since the nuisance arising from the use of the Khor as a latrine was neither created nor authorized by the defendant Council and occurred without their knowledge no action lay. The proper remedy was criminal proceedings against individual members of the public creating the nuisance. Wood vs. Conway [1914] 2 Ch. 47 followed.

    The defendant Council constructed a culvert in the passage of a Khor adjoining the plaintiff’s house; the culvert was too narrow with the result that the Khor was obstructed and rain-water overflowed into the plaintiff’s premises. The defendant Council also established a market near plaintiff’s house and failed to provide latrines, with the result that people from the market used the Khor instead. In an action on these facts, Held: (i) the defendant was liable in nuisance and negligence for causing the overflow of water. Sedleigh-Denfield vs. O’Callaghan [1940] A.C. 880 followed. Rylands vs. Fletcher (1868) L.R. 3 H.L. 330 distinguished. (ii) That since the nuisance arising from the use of the Khor as a latrine was neither created nor authorized by the defendant Council and occurred without their knowledge no action lay. The proper remedy was criminal proceedings against individual members of the public creating the nuisance. Wood vs. Conway [1914] 2 Ch. 47 followed.

Judgment

The facts are fully set out in the judgment of Hassib J.

Advocates: El Rashid El Nayel ……………….for plaintiff

                   Saleh Farah……………………….for defendants

      1St January 1959. Hassib J.: —This is an application for revision against the decree of the District Judge, Omdurman, dated 29 th April 1958, given in favor of the plaintiff El Nur Ibrahim of Omdurman: CS/1255/57

     Plaintiff El Nur Ibrahim is the leaseholder of plot No.101, Hara 2, Mulazmin Quarter, Omdurman. He built a house on the said plot in 1948-49 In about 1955 the Town Council of Omdurman in discharge of its Obligations to the inhabitants of the Mulazmin Quarter built a suk and

                                                               

                                                                                                                                                                            S.L.J.R.—2*

 also made a drain for rain-water in protection of the houses in that quarter.

Plaintiff in the lower Court claimed that:

(a) the lower Court misdirected itself as to the nature of the law applicable, and

(b) It further misdirected itself as to the weight of evidence leading to the conclusion arrived at as to the questions of fact.

I admit the case is not an easy one, and in considering the grounds raised for applicant I must deal with the two questions of law and fact separately.

The plaintiff claims that:

1. The culvert of the drain was narrow, defective and incapable of discharging the quantity of rain-water accumulated in the high part of it and thereby allowed the water to escape and flood the buildings of plaintiff’s house. The flooding of the rain-water caused part of the buildings to fall down and thereby damage was caused to his house.

2. The fact that a suk was built and used since 1955 without a public latrine, made some of the members of the public use the drain as a latrine, and dung accumulated and caused injury to plaintiff’s enjoyment of his house.

3. Plaintiff by way of remedy claimed damages for destruction of his walls both in 1955 and 1957. He also claimed damages for the injury caused by the accumulation of the dung.

The crucial points for my consideration therefore are:

1. Did the construction of the embankment in 1955 make the rain- watercourse narrow?

2. If so, did that make the watercourse incapable of discharging the rain-water actually accumulated in the drain and thereby overflow towards plaintiff’s house?

3. If No. 2 was answered in the positive, was the destruction caused to plaintiff’s building due to the act of defendant?

4. If yes to No. 3, is defendant liable to an action for damages either in:

(a) statutory duty—negligence;

(b) nuisance;

(c) Rylands vs Fletcher?

5. Did the public using the suk make dung in the vicinity of plaintiff’s house?

6. If yes, does the presence of dung cause injury to plaintiff?

7. If yes, is defendant answerable for the nuisance caused by the members of the public?

                                                  

Questions under No. 4 and No. 7 are both points of law, and I shall deal with them first.

Question No. 4: The plaintiff and other leaseholders in the Mulazmin Quarter, were asked by their lease-contract to pay, and they had actually paid, for essential works. The said essential works are imposed on both plaintiff and defendant by the law, thus creating a statutory duty on the side of the Town Council in consideration of payment by the leaseholders. The duty is one of care for the protection of the houses in this area, and for use and enjoyment of the leasehold property.

     The DW. 1 Ibrahim el Fahel, being the Municipal Engineer, said:

“We usually collect essential charges for roads and drains.

Anyway, the Town Land Scheme which has been applied to all the Sudan in 1947 is also applied to Omdurman. Part of the essence of the scheme is to cause all the essential services to commence simultaneously with the construction of the buildings in order that the landlord could immediately enjoy and use roads and all the drainage.” I must, therefore, decide that the Town Council is under a statutory

duty for protection of the plaintiffs premises imposed by the scheme on payment of essential work charges. So if the drain was defective or incapable of passing away the rain-water in a manner making floods injuring the plaintiff’s premises, then the defendant is liable in negligence.

    So much for that. I now proceed to consider whether there is either nuisance or a cause of action under the rule in Rylands vs. Fletcher. The law applicable to the present case is contained in Sedleigh-DenfieId vs. O’Callaghan [1940] A.C. 880. In this case it was held that the principle laid down in Rylands vs. Fletcher does not apply. The case lays down the following principle:

   “If anyone by artificial creation on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour’s land and thus substantially to interfere with his enjoyment, he will be liable for an action at the suit of him who is injured.”

   I therefore hold that defendant’s liability lies either in negligence or in nuisance if it is proved that the defendant’s act was the direct cause for letting the rain-water from the drain pass into plaintiff’s buildings and cause them to fall.

  Question No. 7: The existence of dung is not caused by the defendant. It is caused by a third party, namely the public. In essence it is a public nuisance. It is only actionable as private nuisance if it is authorized by the defendant and meantime will cause injury to the physical comfort of human existence in the plaintiff’s house.

     The law on the point is well established in the case of Wood vs. Conway Corporation [1914] 2 Ch. 47. That being the general principle of the law,

                                                                     

                                 

let us now proceed to consider whether the Court was right or wrong in applying it in accordance with the evidence in respect of questions of fact.

The lower Court decided that:

(a) The construction of the embankment made the rain-watercourse narrow.

(b) This made the course unfit for the purpose of drainage of the rain-water.

(c) The destruction caused to the plaintiff’s buildings in 1955 and 1957 occurred directly because of the narrowness of the drain.

The lower Court in order to arrive at its conclusions heard plaintiff and plaintiff’s expert (PW. 1). It also visited the site and inspected the place in the presence of both parties and their expert witnesses. As a result of the evidence heard and the meticulous inspection made, the lower Court was satisfied that the three questions should be determined in favor of the plaintiff. It stated:

    “The khor as has been seen by this Court has been a natural course of the rain-water for many years past. The plaintiff’s house is built at the mouth of that course. The artificial construction of that water course must have been properly and accurately made. The gutter must have been of a big size. The present culvert is almost 19 per cent of the width of the khor at the point close to it. The culvert is the main water drainage. The filled-up road served as a catchment to prevent rain-water from running off as it is about two metres over and above the bed of the culvert.”

     The allegation of the learned assistant of the Attorney-General that the findings of the lower Court were not based on sufficient evidence has no support. The evidence of (PW. 1) and the inspection made by the Court itself were the evidence on which the lower Court rightly based its findings. I agree with those findings.

     The argument raised by the learned counsel for applicant as to whether there was a right or duty of abatement of the nuisance is futile and I need not comment thereupon. Again the discussion of percolation is irrelevant and has nothing to do with the issue.

       Having affirmed the findings of the Court that the destruction caused to plaintiff’s building was due to defendant’s act of either negligence or nuisance I now proceed to consider what actual damage was caused to plaintiff.

    The plaintiff’s expert witness gave the figures of damage. The lower Court should have accepted those figures. The evidence of the witness proved only a sum of £S.127.173m/ms. The lower Court could award this figure with an additional amount for nuisance and it gave for that

                                                                         

£S.5.000m/ms I also agree with the learned counsel for the defendant that the lower Court was wrong when it decreed an injunction, a remedy which was not pleaded.

   There remains the question of damages for the presence of dung. As I have already mentioned, this is not actionable as the dung was not created by the Town Council, nor did the Council allow its creation. It was created by a third person without the knowledge of the Town Council and the Council could not prevent it. It is a public nuisance punishable under the Penal Code and the plaintiff could have used his right in prosecuting those members of the public who have created the nuisance, in order to abate it.

    I do not agree with the learned District Judge that because the culvert belongs to the defendant the defendant is responsible if the same was used against the public health and in a way injurious to plaintiff. The principle laid down in the judgment of Blackburn J. does not apply. It speaks of something brought by the defendant.

   I therefore hold that defendant is not liable on this part of the suit and the findings and decree of the lower Court on this part of the suit should be reversed.

    In the result I hold that plaintiff is entitled to the following sum:

                £S. 127. 173m/ms in cost of reinstating the wall demolished

                           5.000m/ms in damages in nuisance

                    ----------------

                 £S.132.173m/ms in all, together with costs.

                                                                                                    (Order varied)

     On application for revision to the Court of Appeal, M. I. El Nur. J. wrote the following note:

     14th June 1959 M. I. El Nur J. (after stating the facts, his Honor continued) :—After a long and protracted hearing the learned District Judge, on the evidence before him and inspection by himself of the culvert giving rise to the trouble, was satisfied that the damage to plaintiff’s eastern wall and closet in 1956 and again, after its reconstruction, in 1957 was due to the overflow of the rain-waters occasioned by the interference by defendant in the natural course of the Khor by erecting therein a narrow culvert incapable of discharging all its water, and therefore awarded plain tiff £S.108.473m/ms for the damage caused to his buildings and £S.5 as general damages in respect of the wrong complained of under the first head of his claim: Total £S.113.473m/ms.

     On the second head of plaintiff’s claim, though the learned District Judge reached the finding that defendants, by allowing the people in the nearby suk to urinate and relieve nature in the Khor adjoining plaintiff’s house, created the nuisance complained of, yet he neither awarded

                                                                     

plaintiff the £S.50 damages claimed by him in that respect nor did he dismiss his claim under that head.

     The learned District Judge, however, went beyond his powers and awarded plaintiff a remedy which he neither pleaded nor alleged, by saying:

     “In addition to those damages [£S.113.473m/ms referred to in para. i above] I must award damages to avoid similar nuisance. The sum now granted by the Court is not, in the opinion of the Court, a sufficient remedy to meet any further similar nuisance, and so in substitution of an order of an injunction [which was never asked for by plaintiff] I order an additional sum of £S50 to construct a stronger embankment and concrete cement foundation to resist future inter ference with the plaintiff’s premises.”

     The learned District Judge therefore issued his decree on 29th April 1958 in favor of plaintiff for £S.113.473m/ms in respect of the damage to his house, and £S.50 in lieu of injunction, plus £S.23.990 m/ms in costs, total £S.187.463m/ms.

     On 11th May 1958 the Municipal Council appealed to the Judge of the High Court on the grounds that the District Judge had misdirected himself both on weighing the evidence and in applying the appropriate law with regard to the first head of respondent’s claim and on the further ground that £S.50 awarded to respondent in lieu of injunction was awarded against the law.

     The learned Judge of the High Court, after going into a long discussion of the points of law raised on appeal, came to the conclusion that since the damage to plaintiff’s (respondent’s) eastern wall and closet was proved to be due to the interference of defendants (applicants) with the natural course of the Khor to the east of plaintiff’s house, by constructing thereon a narrow culvert which obstructed the free passage of rain-water and made it overflow and cause the damage complained of to plaintiff’s house, the liability of defendants to remedy that damage was governed by the rule in Sedleigh-Denfield vs. O’Callaghan. On the question of damages awarded to plaintiff by the District Judge on this head the learned Judge of the High Court said (though there was no appeal by plaintiff in this respect):

  “The plaintiff’s expert witness gave the figures of damages. The lower Court should have accepted those figures. The evidence of the witnesses proved only £S.127.173m/ms The lower Court could award this figure with an additional amount for nuisance and it gave for this £S.5.”

   The learned Judge of the High Court having agreed with the Counsel for the Municipal Council that the District Judge was wrong in awarding

 

plaintiff £S. 50in lieu of injunction which he did not plead. omitted that sum and varied the District Judge’s decree as follows:

“Applicants [Municipal Council] shall pay respondent and

plaintiff:

                          £S.127.173m/ms cost of reinstating the wall

                                   5.000m/ms damages in nuisance

                         ------------------          

                          £S.132.173m/ms”

    Plaintiff, who was deprived by the Judge of the High Court (without any reason at all) of the proportionate costs of £S.23.990m/ms awarded to him by the District Judge, and who was also deprived on revision of the £S.50 awarded to him in lieu of injunction, did not apply to the Court for revision of the Judge of the High Court’s decree, but the Municipal Council who benefited by that reduction applied to the Chief Justice for revision of the Judge of the High Court’s decree on revision on the grounds:

(a) that the learned Judge of the High Court misdirected himself about the law in deciding that plaintiff (respondent) was entitled to damages in respect of the damage caused to his house as a result of overflow of the rain-water in the Khor to the east of his house.

(b) that even if plaintiff was entitled to damages, the amount awarded to him, viz., £S.127.173m/ms was overestimated, since plaintiff himself had admitted that he spent only £S17.500m/ms. in rebuilding the wall which was damaged by the flood water in 1955.                                                                                                                                                 

      As regards the first point, I do not think applicant’s application has any merits in it: I have personally visited the site for the purpose of this application, and in my view it does not require the evidence of an expert witness to prove that the damage to plaintiff’s house was directly caused by the overflow of rain-water due to the interference by the Municipal Council in the natural course of the Khor running to the east of respondent’s house by erecting therein a narrow culvert, which obstructed the free passage of rain-water and made it overflow. There is not the least doubt in my mind that the decision of the learned Judge of the High Court to the effect that the liability of the Municipal Council to remedy that damage occasioned by its act is governed by the rule in Sedleigh-Denfield vs. O’Callaghan.

   As regards the second ground of appeal, I find on going through the evidence before the District Judge that respondent had really admitted that he spent £S.17.500m/ms on rebuilding his wall in 1955. The expert witness gave evidence that the rebuilding of the same wall in1957cost £S.53.700m/ms and £S.19.773m/ms. for rebuilding the closet. This makes a total of £S.90.973m/ms. To this may be added the £S.5 awarded by the Court as general damages and £S.23.990m/ms in costs: Total £S.119.963m/ms.                                                             

The learned Judge of the High Court in his decree on the revision appealed against, ordered payment to respondent of a total sum of £S.132.173m/ms The difference is only £S.12.210m/ms and if respondent was given any costs by the Judge of the High Court in respect of the revision that difference might not have arisen at all.

      I have explained these calculations to Sayed Saleh Farah of the Attorney-General’s Office who represented applicants and he expressed his satisfaction that it is not worth adjourning this application to the Court of Appeal for the purpose of this insignificant difference which may not ultimately be reduced from the Judge of the High Court’s decree. I think he is wise.                                                                                                              

    Therefore, subject to the agreement of the Chief Justice, this application should be summarily dismissed.                                                                                                                    

     14th June 1959. M. A. Abu Rannat C.J.: —Application is summarily dismissed.

                                                                   (Application summarily dismissed)