SANDHU CONSTRUCTION COMPANY LIMITED v PETER E.M. SHAYO 1984 TLR 127 (CA)

SANDHU CONSTRUCTION COMPANY LIMITED v PETER E.M. SHAYO 1984 TLR 127 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Makame JJA and Kisanga JJA

August 13, 1984

H CIVIL APPEAL NO. 14 OF 1984

Flynote

Tort - Nuisance - Standard to be applied in determining degree of interference by

nuisance to comfort or I convenience - Test of average man - Character of

neighbourhood.

1984 TLR p128

MUSTAFA JA

Tort - Nuisance - When nuisance is actionable - Test of tolerance and acceptability of

discomfort and A inconvenience.

-Headnote

The respondent had sued the appellant in private nuisance and prayed for an

injunction to restrain the appellant from continuing the nuisance and for general

damages. The respondent had alleged B that his enjoyment of his house situated at

Elerai village in the Arusha Municipality was seriously interfered with by the

excessive noise, vibrations and obnoxious dust emanating from a stone crusher

operated by the appellant situated 30 metres from his house. The respondent himself

had a C maize mill operating within the compound of his house. The respondent

was successful in the High Court and it is against that decision that the appellant is

appealing.

Held: (i) In considering the standard of comfort or convenience of living of the

average man, the character of the neighbourhood must be taken into account; an

average man's standard of comfort D and convenience involves the toleration of acts

done by his neighbour in the course of ordinary and reasonable use of his property;

(ii) a nuisance to be actionable must be such as to be a real interference with

the comfort or E convenience of living according to the standard of the average man;

discomforts caused are not actionable if they fail to qualify as intolerable or

unacceptable; the discomforts must cause suffering to the party complaining. F

Case Information

Appeal allowed.

No case referred to

C.M. Ngalo for the appellant

P.M. Jonathan for the respondent. G

[zJDz]Judgment

Mustafa, J.A. delivered the following judgment of the court: The respondent had sued

the appellant (hereafter called Saccon) in private nuisance and prayed for an

injunction to restrain Saccon from continuing the nuisance and for general damages.

The respondent had alleged that his enjoyment H of his house situated at Elerai

village in the Arusha municipality was seriously interfered with by the excessive

noise, vibrations and obnoxious dust emanating rom a stone crusher operated by

Saccon situated 30- metres from his house. The respondent himself has a maize mill

operating within the I compound of his house.

1984 TLR p129

MUSTAFA JA

A The respondent succeeded in the High Court (Mwakibete, J.). He obtained an

order restraining Saccon from continuing the stone crushing activities and shs.

25,000/= as general damages. From that decision Saccon has appealed.

B Elerai, according to a witness called by the trial judge, Land Officer Wiboga, is

used both for residential and service industrial purposes. It is an unsurveyed area.

Stone crushers are licensed to operate in Elerai. In fact, apart from the one operated

by Saccon, there are three other stone crushers in Elerai.

C To establish his case, the respondent has to show that the interference with his

enjoyment of his house and the inconvenience and injury caused him are real and

sufficiently serious to constitute an actionable nuisance. In considering the standard

of comfort or convenience of living of the average man, the character of the

neighbourhood must be taken into account. An average man's standard of D

comfort and convenience involves the toleration of acts done by his neighbour in the

course of the ordinary and reasonable use of his property.

There can be no absolute standard to be applied; it is always a question of degree

whether the E interference with comfort or convenience is serious enough to

constitute an actionable nuisance in the circumstances of the case. A nuisance to be

actionable must be such as to be a real interference with the comfort or convenience

of living according to the standard of the average man. F Discomforts caused are not

actionable if they fail to qualify as intolerable or unacceptable. The discomforts must

cause suffering to the party complaining.

We will now deal with the facts as adduced in evidence at the trial. The respondent

had alleged in his plaint that Saccon's stone crusher had been "causing considerable

amount of noise, vibrations G and obnoxious dust to be blown on the plaintiff's

residential house impregnating and polluting the air in and about the same", and that

he and his family members have been "rendered unhappy and uncomfortable, and

suffered great discomfort, inconvenience, disturbance and upset". The H respondent

has therefore complained of noise, vibrations and obnoxious dust, and he must

establish that one or all of those intangible invasions of his house had reached

unacceptable or intolerable levels taking into account the local and environmental

circumstances.

I In answer to the respondent's complaint, a team of experts comprised of D.W.3 Dr.

Moshi, the Regional Medical Officer, Mr Lyimo the Regional Health Officer, Mr.

Msei the Arusha Town

1984 TLR p130

MUSTAFA JA

Health Officer and Dr. Bobe of the Occupational Health Services, visited the site and

took readings A of sound levels. It was found that the stone crusher in normal full

operation reaches 74 decibels, the same level as that reached by the grain mill of the

respondent when in operation. When rock was being unloaded into the crusher, the

level reached was 50 decibels. Ambient noise in an office B with tabulation

machines would be 70 - 80 decibels. The team was of the opinion that the noise

levels of the crusher are not unacceptable. The trial judge accepted that finding.

The team could not give an opinion concerning the volume of dust generated, as on

their visit, no dust was generated by the working of the crusher because the

atmosphere was damp. C

Mr. Jonathan, for the respondent, complained that the team did not take readings of

noise levels when the stone crusher and the grain mill were working simultaneously.

Dr. Moshi conceded that he overlooked this, but testified that there is a tendency of

sound waves to engulf each other, the one D with high frequency tending to engulf

the one with low frequency. The sound level of the two working simultaneously

would presumably be higher, and could be irritating, depending on where one is

positioned.

We are satisfied that as far as the noise factor is concerned the respondent has not

established that E it was of an unacceptable level so as to constitute an actionable

nuisance. The trial judge erred in finding, on pure speculation, that if the stone

crusher and the grain mill were operating simultaneously, the sound level would have

become intolerable. There was no such evidence, and F in any event, the

respondent's complaint was about the sound level of the stone crusher.

We come to the other factor, that of vibrations. In his evidence, the respondent

stated inter alia: G

"There are vibrations - including dust which is the more serious of the two.

The dust comes directly onto my flour mill and my house".

That is the extent of his evidence concerning vibration. In any event the trial judge

made no finding H on this aspect of the case, and we can find no cogent evidence

concerning the volume or intensity of vibrations caused by the crusher so as to

determine whether it reached intolerable limits.

As regards dust, a number of witnesses testified that dust was emitted from the stone

crusher. I However, again no evidence was

1984 TLR p131

MUSTAFA JA

A adduced as to the volume of dust emitted. It is not known whether the dust from

the stone crusher is much more than that emitted from the grain mill, though

probably the volume from the former would be greater. But we do not know

whether it was so great as to be unacceptable. The B trial judge found that the stone

crusher emitted dust, but he did not find whether the level emitted was intolerable.

Indeed Mr. Jonathan in his address at the trial is alleged to have stated:-

C SHUMA crusher wrongly sited - too - a nuisance to those living in the

neighbourhood including plaintiff. Thus SACCON additional nuisance.

That would seem to indicate that the respondent was complaining of dust from both

the Saccon and D Shuma stone crushers, although the latter was situated 700 metres

away while the former was only 30 metres.

There was an allegation that stone dust could bring about bronchitis,

pneumocomiasis, and silicosis. However, expert evidence adduced indicated that dust

does not cause bronchitis, but only acts as a E catalyst, whether it is stone dust or

any other dust. Dust aggravates the inflammatory process. Dust which causes

pneumocomiasis is dust which contains silicates and pneumocomiasis could be caused

if iron oxide is isolated from dust. It seems no cases of pneumocomiasis or silicosis has

ever F been recorded in Tanzania.

The trial judge would appear to have accepted this expert opinion. Then he

proceeded as follows:

G ... I do not think I need call upon the plaintiff to produce evidence that Arusha

stone dust contains silica or iron oxide. Nor do I think it prudent to demand evidence

from the plaintiff to satisfy me that the process of stone crushing does produce silica

and or iron oxide. As long as there is no dispute as to stone dust, with or H without

silica or iron oxide, being a potential stone dust health hazard, and the other two

diseases too being associated with stone dust - I feel it sufficiently established that

stone dust - including Arusha stone dust is a potential hazard ... In my view to be

able to hold otherwise there must be clear evidence to suggest that the I stone dust

has been tested but the tests have revealed no traces of silica or iron oxide. No such

evidence was brought before the court. There was

1984 TLR p132

MUSTAFA JA

no evidence to suggest that the process of stone crushing is incapable of

producing silica or iron oxide ...". A

It seems that the trial judge has cast the onus on Saccon as defendant to establish that

stone dust does not contain silica or iron oxide. The correct approach of course was

for the respondent as B plaintiff to establish that the stone dust emitted by the stone

crusher contained such ingredients. The trial judge seriously misdirected himself.

Mr. Jonathan, rightly in our view, does not feel able to support the trial judge on this

matter.

We readily agree that the stone dust must have caused the respondent inconvenience

and C discomfort. But the respondent has decided to live in an area in which stone

crushers operate. There was evidence that stone crushers have been in existence in

that area since 1951. Shuma stone crusher was allegedly situated only 15 metres from

some residential houses. By living in Elerai the D respondent must be presumed to

have agreed to tolerate acts of his neighbours in carrying out their normal and

reasonable activities. As far as we can see, Saccon was carrying out its normal

activities in operating its stone crusher, and the respondent, in the circumstances,

must suffer the resulting discomfort from the stone crusher. If however there was

evidence that the noise, hazards to health E or dust volume had reached intolerable

or unacceptable levels, then such invasions would constitute an actionable nuisance.

But in this case no sufficient evidence has been forthcoming. What the respondent

has suffered would seem to be the usual and normal incidents attached to F living in

Elerai under present conditions. If the character of the area changes, perhaps dust

emitted from a stone crusher would be an actionable nuisance. But in Elerai, it seems

that the time is not yet.

Mr. Ngalo for Saccon has also attacked the award of general damages. In the view we

take of the G appeal, it is not necessary for us to deal with that matter.

We allow the appeal, set aside the judgment and decree of the High Court, and

substitute therefor an order dismissing the claim. We award costs to the appellant

Saccon both here and below. H

Appeal allowed. I

1984 TLR p133

A