National Hotels Development Corporation T/A Fairview Hotel v Motala (SCZ Judgement 10 of 2002) [2002] ZMSC 129 (24 April 2002)

IN THE SUPREME COURT FOR ZAMBIA SCZ JUDGMENT NO. 10 OF 2002 HOLDEN AT LUSAKA APPEAL NO, 107 OF 2000 (61) (Civil Jurisdiction) BETWEEN: NATIONAL HOTELS DEVELOPMENT CORPORATION Appellant T/A FAIRVIEW HOTEL AND EBRAHIM MOTALA Respondent CORAM: Ngulube, CJ, Sakala and Chirwa, JJS. On 22nd November, 2001 and 24th April, 2002 For the appellant - N. Chanda, of Okware and Associates For the respondent - A. M. Wood, of A. M. Wood and Company. JUDGMENT Ngulube, CJ, delivered the judgment of the Court. Case referred to:- 1. Sedleigh-Denfield -v- O’Callaghan (1940) AC 880. This case concerns noise nuisance and the issues are whether it was wrong to find the appellant (the defendant) liable at all and secondly, if the J2 (62) answer be in the negative, whether it would be wrong to ban forever the playing of music on the terrace of the defendant’s hotel. The parties are neighbours separated only by a road and the respondent (hereafter called the plaintiff) complained that the playing of loud music on the terrace more or less overlooking his house late into the night disturbed his quiet and convenient enjoyment of his house. The defendant’s position was that the playing of music on the terrace attracts more patrons and its absence would lead to serious financial loss. The plaintiff' testified to being thoroughly inconvenienced such that it was sometimes impossible even to hear the dogs barking or visitors’ cars’ arriving or even to hold any meaningful conversation. The parties called some of the neighbours, on one side to say they were not unduly disturbed by the music and on the other side to say they too were sufferers like the plaintiff. The parties even called some experts to record the noise levels in decibels with the defendant submitting that the plaintiff was oversensitive and should have no cause of action. An expert on the plaintiffs side talked of having recorded noise levels of around 81 to 88 decibels while the expert on the defendant’s side opined that to be painful to the ear and therefore intolerable, the noise levels should be around 120 decibels or more. ^3 (63) Spirited arguments and submissions were made before us to persuade us that noise levels at less than 120 decibels should not be actionable. We are not too sure whether noise nuisance can be reduced to decibels so that only a specific level or quantity of noise measured in decibels should be actionable. This type of civil wrong has long been recognized to raise questions of fact, such as whether noise disturbance which deprives a neighbour of rest or sleep can or cannot inconvenience any other person of ordinary firmness and sensibility. The whole position is put very well by the learned authors of Clerk and Lindsell on Torts, 16th edition, paragraph 24- 05 when they write:- “In nuisance of the third kind, “the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves,” there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, J4 (64) place, extent or the manner of performance. In organized society everyone must put up with a certain amount of discomfort and annoyance from the legitimate activities of his neighbours, and in attempting to fix the standard of tolerance the vague maxim sic utere tuo, ut alienum non laedas has been constantly invoked. But the maxim is of no use in deciding what is the permissible limit in inconvenience and annoyance between neighbours, and the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society?’ “Whether such an act does constitute a nuisance must be determined not merely by an abstract consideration of the act itself, but by reference to all the circumstances of the particular case, including, for example, the time of the commission of the act complained of; the place of its commission; the manner of committing it, that is, whether it is done wantonly or in the ^5 (65) reasonable exercise of rights; and the effect of its commission, that is, whether those effects are transitory or permanent, occasional or continuous; so that the question of nuisance or no nuisance is one of fact.” Respectfully, we go along with the foregoing propositions which are supported by case authorities, as noted by the authors. In the case at hand, the Court below found as a fact that the plaintiff suffered discomfort, disturbance and inconvenience. Admittedly, the defendant too was not doing anything illegal as such; they too were exercising their rights to entertain their patrons with music and to make money. Apparently, from the spirited submissions, music on the terraces encourages patrons to come in their numbers and to spend their money. Apparently and contrary to Mr. Wood’s submission, it is not the same thing if the music were to be played indoors; in some other part of the hotel, as was suggested. However, there can be no question of killing the tort of noise nuisance for the sake of accommodating business interests, as Mr. Wood feared. The problem here cannot be one of attaching or detaching liability. Quite clearly, there is no proper ground for disturbing the lower Court’s finding of liability and the ground urged in that behalf is unsuccessful. (66) However, we find that there was much merit in the ground complaining about the relief of perpetual injunction and the apparent permanent blanket ban on the playing of music on the terraces. The problem is one of striking a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of his property. We have lifted this phrase out of the earlier quotation which in turn was taken from SEDLEIGH-DENFIELD - v- O’CALLAGHAN (1), by Lord Wright at p.903. In striving to strike a balance, we are pleased to note the sensible attitude taken by the plaintiff through his Counsel that he is not opposed to music at reasonable levels and up to a reasonable hour. The blanket ban was too harsh and it ignored the rights of the defendant which equally need to be recognized and protected. In this regard, the appeal is allowed to the extent that the complete ban on the playing of music on the terraces is set aside. Instead, there will be conditions imposed and the order of injunction rephrased so as to permit the playing of music on the terraces up to 21.30 hours during weekdays and 22.30 hours during weekends. The times represent a compromise between those suggested by the parties. Every instance of breach of these times will entitle the plaintiff to damages to be assessed on an aggravated footing by (67) the Deputy Registrar on application by the plaintiff. We consider that this will address the concern that orders have in the past been continually breached. In sum, the appeal succeeds to the extent indicated. In order to foster goodwill and a sensible approach to the problem by these neighbours, we make no order as to costs. M. M. S. W. Ngulube, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE.