nuisance is one of those things about human experience that conjures up feelings of annoyance and irritation. It is defined simply as an unreasonable interference with a person’s enjoyment of their property.
In Uganda there are several factors people put into consideration when choosing a residential or work area in order to maximize the enjoyment of the property they have paid for.Among others these factors are access to essential amenities, a clean and healthy environment and above all things, quiet enjoyment of the property.
While one can guarantee access to a main road and other utilities, one might not guarantee the quiet enjoyment of their property because there will always be those whose activities will affect this right.
On the long list of the typical offenders are “bibanda” –local makeshift cinema halls, churches, bars and those who rear animals especially chicken, goats and cows.
The biggest temptation for them is to argue that they are allowed to use their property as they please but it must not be at the expense of their neighbor. One can only use their property within the acceptable bounds of the law.
According to Halsbury’s Laws of England (4th Edn) volume 34, a person becomes a nuisance where the person does an act which becomes an inconvenience that materially interferes with the ordinary physical comfort of human existence and not merely according to the elegant or dainty modes and habits of living but according to plain and sober and simple notions obtaining among the people.
Simply put, you may sue your neighbor for operating a very loud bar or club next to you but you may not be able to successfully sue your neighbor because you do not like the kind of music he plays or because he decided to paint his entire house a bright shade of orange.
The act complained of must be an interference with the legitimate use of one’s property including a right to a clean and healthy environment and quiet possession of property.
Depending on the circumstances, the nuisance may be foul odors, incessant vibrations, strong fumes, blockage of light or the breach of standards and ordinances under NEMA like the Noise Environment (Noise and Vibrations Standard & Control) Regulations 2013 which were enacted to ensure a healthy environment for all the people in Uganda, the tranquility of their surroundings and their psychological well-being by regulating noise levels and generally to elevate the standard of living of the people.
Once the annoying activity has been identified, one must then evaluate whether they can co-exist with the nuisance. Should the nuisance persist to a level that an ordinary and reasonable person can no longer tolerate, choosing the next course of action to deal with the situation makes for item one on the agenda below.
In a civilized society, dialogue and diplomacy are always the first step since acrimonious warring may leave a bitter taste in the relationship between the neighbours.
Talking things over and pointing out the nuisance may do both parties some good. If that approach does not yield positive fruit, it might turn out to be a case of the barren fig tree.
At this point, one should begin collecting evidence in order to escalate the matter to the authorities concerned. Evidence will include pictures, videos and sound recordings of whatever the nuisance may be.
The nearest office for registering the complaint would be the L.C 1 chairman who should attempt to mediate the conflict. While at this stage, parties should resolve the matter through mediation.
A lawyer will come in handy to draft a Memorandum of Understanding between the parties in order to reach a settlement and ceasefire.
The case of Mukwasi General Contractors Ltd v Living words Assembly Limited & 2 ors (Civil Suit No. 230 of 2013) is an example where parties tried to mediate the matter through a Memorandum of Understanding before approaching court.
The list of authorities to turn to does not run dry as NEMA is mandated under the Section 129 and 130 of the National Environment Act 2019 to issue environmental notices and environmental restoration orders to anyone to restrict them or to stop them from undertaking and/or proceeding with an activity that is deleterious to human health or the environment.
Finally, where all the above avenues have been exhausted, a party is free to apply to a competent court for redress depending on their cause of action.
Regulation 43(2) of the National Environment (Noise & Vibrations Standards & Control) Regulations 2013 for instance allows one to bring an action to a court of competent jurisdiction for the nuisance of noise emission beyond the acceptable standards.
Court will usually consider the character of the neighborhood, the character of the defendant’s conduct, the degree of the intrusion and the effect on the plaintiff.
In the case of Bwogi Richard Kanyerezi v The Management Committee Rubaga Girls School H.C.C.A No.3 of 1996, the Appellant sued the Respondent in private nuisance and prayed for a permanent injunction against the school to stop the use of 12 VIP latrines situate on the lower end of its school premises.
Having lost at trial, he appealed against the decision of the Magistrate to the High Court.
Evidence was adduced to show that the Appellant tried to negotiate with the Respondent to change the location of the toilets from the windward side of the Appellant’s house in vain.
The court found in favour of the Appellant and held that the foul odor being emitted from the Respondent’s premises greatly inconvenienced his family and caused him great discomfort.
It further found that the adamancy of the Respondent in mitigating the situation also contributed as a determining factor in finding the Respondent’s behavior a nuisance.
Consequently, even at this stage in court, one should not shy away from exploring mediation at any stage since in the typical nuisance case one might not be entitled to damages so the earlier one closes the case, the better.
The other general benefits of mediation have been canvassed before in this article; 7 Reasons to Settle Your Case at Mediation.
Otherwise a frustrated party might have to put up with the inevitable delays of our judicial system just to get a prohibitory order.
As I part, potential offenders like church administrations and bar/club owners should therefore consider sticking to the provisions of the permits from the local authority depending on the location and from NEMA in order to avoid the unnecessary cost and embarrassment that follow disputes arising from being declared a nuisance.
This will go a long way in maintaining a healthy neighborhood and environment. The poem by Rudyard Kipling “Neighbours” should sum it all up.
The man that is open of heart to his neighbor,
And stops to consider his likes and dislikes,
His blood shall be wholesome whatever his labour,
His luck shall be with him whatever he strikes.
The Splendor of morning shall duly possess him,
That he may not be sad at the falling of eve.
And, when he has done with living- God bless him!