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 Icompound of his house.
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 Dcomfort 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
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
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 Ecatalyst, 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
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