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IN THE SUPREME COURT FOR ZAMBIA SCZ JUDGMENT NO. 10 OF 2002

HOLDEN AT LUSAKA APPEAL NO, 107 OF 2000

(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
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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.

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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,
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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

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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.

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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

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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.