The Concept of Nuisance, Understanding “Without Prejudice” Clause in Nigerian Law

The Concept of Nuisance Under Nigerian Law

In inter-personal co-existence, there are acts that may constitute a disturbance to another party’s peaceful enjoyment of their rights, especially in certain subject matters like land.

This is the rationale behind the legal framework governing Nuisance, which is a Tort that involves an act or acts that limit the rights of another person or a group of other persons. 

This article aims to look into Nuisance as a concept, with a focus on the topics of:-

– The definition of Nuisance under Nigerian Law.

– The types/categories of Nuisance & their ingredients under Nigerian Law.

– The legal & regulatory framework governing Nuisance in Nigeria.

– Examples of acts that would constitute Nuisance under Nigerian Law.

What is the definition of Nuisance under Nigerian Law?

Nuisance is defined by Nigerian Case Law as an act or omission which is an interference with or causing annoyance to a person in the exercise or enjoyment of :-

– A right belonging to a person as a member of the public.

– The ownership or occupation of last or some easement, profit, or other rights in connection with land. 

What are the categories of Nuisance under Nigerian Law?

Nuisance under Nigerian Law can be categorized into :-

– Private Nuisance – Which is an act or omission constituting an interference with the rights of another person concerning the enjoyment of landed property ranging from peaceful occupation to noise pollution to a right of way on a shared road leading to his property. 

– Public Nuisance :- An act or omission constituting an interference with a right belonging to a section of the public or the general public. 

What are the ingredients of Nuisance under Nigerian Law?

The ingredients of Nuisance are according to its categories which are:-

Private Nuisance

– An interference, typically continuous,  with another party’s rights concerning the enjoyment of land.

– An interference with the another party’s use of land.

– The offending party continuing with the act or omission constituting Nuisance even when asked to desist from doing so by the affected party.

– An act  capable of leading to harmful hazardous consequences suffered by an another party including but not limited to pollution, distress or a fetter on their rights to free movement. 

Public Nuisance.

– An act or omission constituting an instruction to the peace and comfort of a section of the public.

– An action causing an inconvenience and interference with a right enjoyed by the general public.

– An action causing an affront to public policies on morality & decency.

What are examples of specific acts or omissions that would constitute Nuisance?

Examples of acts or omissions that would constitute Nuisance include :-

– Blocking a road open to public use.

– Smoking obnoxious substances or narcotics within a shared residential area.

– Hosting unlicensed or unauthorized events within a residential area that would most likely cause noise pollution.

Commercial Dispute Resolution :- Understanding The “Without Prejudice” Clause in Business Communications Under Nigerian Law.

In several written or email business communications, it is not uncommon to see some messages marked with a conspicuous “Without Prejudice” phrase.

This phrase/clause, as casual and simple as it may seem, carries a lot of legal implications in business relationships and will be forming the focus of this article, with a deeper look at the topics of :-

– What the “Without Prejudice” phrase means and its supporting rationale.

– When the phrase will and will not be applicable.

– Exceptions to the “Without Prejudice” rule.

– A comparison of the “Without Prejudice” principle with the “Save as to cost” & “Subject to Contract” principles.

What exactly is the “Without Prejudice” principle and how did it come about?

The principle of marking documents as lacking prejudice (which in reality is actually a short form of the phrase “Without prejudice to proceedings”) is a Common Law principle serving as an exception to the principle of admission.

In the course of trying to amicably settle business or commercial disputes, there are written or email communications that may carry settlement offers that can be implied admissions of liability.

These settlement offers can be made before or during legal proceedings via litigation or alternative dispute resolution and are protected from being admissible as admissions of liability before a court by the law of evidence (in Nigeria, the Evidence Act of 2011) by virtue of being made in good faith. 

Hence when a business letter or official communication is marked with the phrase “Without Prejudice”, such a communication is protected from admissibility by law.

When will the principle of “Without Prejudice” be applicable ?

To invoke the prejudice principle, a settlement or negotiation offer MUST be made in the communication.

Would the prejudice principle still apply where a business letter or communication is not marked “Without Prejudice”?

Yes it would be applicable even in such a case as long as a settlement or negotiation offer was clearly conveyed in the communication.

What are the exceptions to the “Without Prejudice” principle?

The principle will not apply in the following situations :-

– Where there is an element of fraud or undue influence present in or responsible for the communication.

– Where a written communication marked “Without Prejudice” is tendered just to prove it was made and not to serve as proof of an admission of liability by its maker.

– Where it is tendered to prove a case of estoppel (stopping a party from reneging on an agreement) especially where the party to whom the communication was made acted on it.

– Where a party not involved in the communication as its maker or recipient seeks to tender it as evidence.

– Where the written communication does not contain an admission or settlement/negotiation offer.

What are the differences between the “Without Prejudice” principle & the principles of “Save as to cost” & “Subject to Contract”?

The principle of “Save as to costs” or “Without prejudice save as to costs” carries the same provision as the “Without Prejudice” rule except for the provision that such a communication would only be admissible in evidence regarding the issue of costs, especially where parties in a dispute agree that costs of legal proceedings should be borne by one of them. 

The principle of “Subject to Contract” on the other hand renders unenforceable & non-binding, any communication made except where pursuant to a contract being made and signed by the parties.