(1967) 1 CLR 20
1967 March 17
[*20]
[TRIANTAFYLLIDES, STAVRINIDES AND LOIZOU, JJ.]
ANDREAS CHRISTOFIDES AND ANOTHER,
Appellants-Plaintiffs,
v.
MATHEOS ARMEFTI
Respondent-Defendant.
(Civil Appeal No. 4603).
Civil Wrongs-Nuisance-Private nuisance-The Civil Wrongs Law, Cup. 148, section 46-Right to sue-A mere licensee does not have the requisite title to sue for a private nuisance-Nor can it be said that he is in de facto occupation in a sense enabling him so to sue-Therefore, appellant 2 being only the husband of the owner of the house in question in which he resides, is not entitled in law to sue himself for nuisance.
The facts are set out in the judgment of the Court. Allowing the cross-appeal by the respondent-defendant the Court held as stated hereinabove.
Cases referred to:
Malone v. Laskey, 76 L.J. K.B. 1134 followed;
Foster v. Warrington Urban Council, 75, L.J. K.B. 514, distinguished.
Appeal and cross-appeal.
Appeal and cross-appeal against the judgment of the District Court of Limassol (Papadopoullos D.J.) dated the 21st October, 1966, (Action No. 1753/64) whereby an action for damages for nuisance etc. was dismissed in so far as plaintiff No. 1 was concerned and an injunction was granted restraining the defendant from operating his factory during certain hours.
A. Georgiades, for the appellants.
J. Potamitis, for the respondent.
The Judgment of the Court was delivered by:
TRIANTAFYLLIDES, J : In this case the Plaintiffs- [*21 Appellants appeal against the judgment of the District Court of Limassol, given on the 21st October, 1966, in an action, No. 1753/64, brought by them against the Respondent-Defendant for private nuisance.
What gave rise to such action was the operation of works of the Respondent, which are situated in the vicinity of the house of Appellant 1, and of the house of the wife of Appellant 2, in which such Appellant resides, also, by virtue of his marriage.
The learned trial Judge dismissed the action, in so far as Appellant 1 was concerned, on the ground that he could not find any satisfactory evidence indicating how this Appellant’s house had been affected by the operation of the works.
Initially, counsel for the Appellants did not appear to contend specifically that it was erroneous for the trial Judge to dismiss the claim of Appellant 1; and, as a matter of fact, no. such ground of appeal appears expressly set out in the notice of appeal. Later on, however, he argued that the dismissal of the claim of Appellant 1 was covered by the fourth ground in the notice of appeal which complains, generally, that the trial Court “wrongly did not accept the evidence of the Plaintiffs and their Witnesses as regards the nuisance complained of”. Even if we were to treat this ground as being wide enough to cover the particular matter, we have found nothing in the material before us Which could lead us to the conclusion that the relevant view of the trial Judge-that it had not been satisfactorily established how Appellant’s 1 house was affected by the operation of the works of the Respondent-was not properly warranted in the circumstances. We, therefore, need say nothing more on this point and the appeal of Appellant 1 is hereby dismissed accordingly.
In relation to the claim of Appellant 2 the trial Court found in his favour and issued an injunction restraining the Respondent from operating the works between 5 p.m. and 7.30 a.m.1 from the 1st October to the 30th April, and between 6.30 p.m. and 7 a.m., as well as, between 1 p.m. and 4 p.m., from the 1st May to the 30th September, in each year.
Counsel for the Appellants has submitted that this injunction is not as drastic as it ought to be; his contention appeared to be that it ought to have prevented the works from being operated at all. [*22]
Before dealing with the merits of the above submission, it is useful to deal with a cross-appeal which has been made by the Respondent; because, if the cross-appeal were to succeed, then, there would be no point in considering the appeal any further. By the cross-appeal it is being contended that as Appellant 2 is only the husband of the owner of the house in which he resides he was not entitled in law to sue, himself, for nuisance.
Counsel for Respondent has referred us to Malone v. Laskey (76 L.J. K.B., p. 1134) where it was held that the wife of a tenant, being only a licensee, had no right to institute proceedings for nuisance.
Counsel for the Appellants has submitted that the trial Court was right in finding Appellant 2 entitled to take proceedings, on the ground that he, too, was in occupation of the house of his wife; he has argued that Appellant 2 was, thus, in de facto occupation, and that such occupation was sufficient to entitle him to sue, on his own, in this case.
It appears to be quite well established in law that an occupier can only sue for private nuisance if he has a title to possess the premises affected thereby. (See Clerk & Lindsell on Torts 12th ed., p. 1282, para. 1283 and 1-lalsbury’s Laws of England 3rd ed., vol. 28, p. 154; in both instances Malone v. Laskey supra, is cited). A mere licensee, such as a, spouse residing in the house of his wife (or of her husband, as the case may be) does not have the requisite title to enable him to sue for private nuisance; nor can it be said that he is in de facto occupation in a sense enabling him so to sue.
De facto occupation appears to have been held as sufficient to found the right to bring an action for nuisance only in circumstances in which it coincided, in fact, with actually existing rights to the property affected, as in Foster v. Warrington Urban Council (75 L.J. K.B., p. 514); the present case is clearly of a totally different nature, because all rights to the house affected by ‘the operation of the works of the Respondent are vested in the wife of Appellant’ 2, its owner, and Appellant 2 merely resides there in as a licensee, by virtue of his status as husband.
In the circumstances, we take the view that the Appellant 2 could not, himself, sue for nuisance in this case and that the cross-appeal should succeed; therefore, it is not necessary to deal with the appeal of such Appellant on its merits. [*23]
There shall be an order dismissing the appeal of Appellants and allowing the cross-appeal of the Respondent with the result that the injunction issued by the trial Court is set aside. There should be, also, an order of costs in favour of the Respondent and against both Appellants in respect of all costs, both before the trial Court and on appeal, except that any costs specially incurred in connection with the cross-appeal shall burden Appellant 2 alone.
Appeal dismissed. Cross-appeal
allowed.
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