clr/1988/1988_1_615.pdf

(1986)1C.L.R. 65; Parmaxi v. Katsiola

(1985)1C.L.R. 633; Kyriacou v.Petri and Others

(1985)1C.L.R. 275. Appeal. Appeal byplaintiff againstthejudgment of theDistrictCourtof 15 Nicosia (loannides, D.J.) dated the 26th February, 1986 (Action No.6523/84) whereby heraction foran injunction restraining the defendants from causingnuisance wasdismissed. M. Charalambides, for the appellant. M. Cleopas, for the respondents. 615 Demetriou v.Aristodemou

(1988)SAWIDES J gave the following judgment of the Coutr. 7,ijs is an appeal against the judgment of the District Court of Nicosia dismissing appellant's action for an injunction restraining the defendants from causing nuisance by continuous noise, vibrations, explosions and otherintolerable noiseand alsobythe emission of dust, smoke, fumes from paint and burnt material dangerous to human health. 5 The facts of the case are briefly as follows: The appellant isa Sisteratthe General Hospital inNicosia and the owner and occupier of the 1st floor of a house at No. 24 10 Demokratias Avenue, atAyiosDhometios where she resideswith her family. The respondents-defendants are the owners and occupiers of an adjoining building, the basement of which is used by respondent-defendant 1 as a workshop for straightening of damaged cars. 15 It had been the contention of the appellant all along that the operation ofthisfactory createsintolerable noiseand itdischarges fumes from paintsand burningmaterialinterfering withthe health of the appellant and her family. 20 The trial Court, which heard a considerable number of witnesses on both sides at a hotly contested hearing, did not accept the evidence of the appellant and hermother as evidence on which it could rely. It made an elaborate analysis of the evidence of the witnesses who gave evidence in the case and 25 made extensive comments about each one of them. The trial "Courtfound thatthe onlyacceptableevidencewasthatofD.W.3,. Sub-Inspector Kyriakos Michael whom he treated as an independent witness and who had visited the locus on several occasions after complaints lodged to the police by the appellant. 30 The learned trialJudge had thistosayin respect ofthiswitness: «The evidence of Sub-Inspector Kyriakou is of material importanceinthepresentcaseasthiswitnessbesidesbeingan independent witnesshasmadeaninquiryafteracomplaintby the plaintiff and carried outinvestigations astowhether there 35 wasa noise.Thiswitnessthough cross-examined atlength did not state anything inconsistent with his findings but on the contraryhe gave certain instancesjustifying his findings. TheCourtbelievesand acceptstheevidenceofthiswitness on all points and finds that the noise created by the 40 616 1 C.L.R. Demetrlou v. Aristodemou S a w i d e s J. straightening workshop of the defendant isnot excessive but is the ordinary noise of a straightening workshop which is audible ifone approaches closelythe factory. 5 Witness Kyriakou did not mention whether the noise is audiblewhen oneisinthehouse oftheplaintiff thoughhesaid that whilebeingatthestaircaseofthehouse of theplaintiff he heard very lownoise». ThelearnedtrialJudgethenproceeded andinanelaborateway dealt with the legal principles applicable in cases of private 10 nuisance and came tothe conclusion thatthenoisecomplainedof isnotsuch astointerfere withthecomfort and convenience of the appellant and the reasonable use and enjoyment ofher property. The learned trial Judge further dismissed appellant's complaint about headaches, dizziness, allergy and respiratory problems 15 which according toherversion were caused bythefumes and the emission of paint asaccording to the medical evidence produced her health problems could not be attributed to the operation by respondent 1 of his workshop. The definition of private nuisance according tos.46 of theCivil 20 WrongsLaw,Cap. 148,isas follows: 25 «46. A private nuisance consists of any person so conductinghimself orhisbusinessorsousingany immovable propertyof which heisthe owner oroccupier ashabitually to interfere with the reasonable use and enjoyment, having regard to the situation and nature thereof, of the immovable property of any other person: Provided that no plaintiff shall recover compensation in respect of any private nuisance unless he shall have suffered damage thereby: 30 Provided also that the provisions of this section shall not apply toany interference with daylight.» What is an essential ingredient of this civil wrong is that there should be habitual interference with the reasonable use and enjoyment of immovable property of any other person. The 35 burden wasupon the appellant tosatisfy the Court that there was such interference and according to the findings of the trial Court she failed to do so. The trial Court within the scope of its jurisdiction as a trial Court had the opportunity to hear the 617 ·) SawidesJ. Demetriou v.Aristodemou

(1988)witnesses and make its findings as to credibility and decided the case on such findings. On the evidence before him the learned trialJudge found that the noise created bythe operation oftheworkshop of respondent 1, though audible to some extent in the house of the appellant, 5 was not such as to interfere with the reasonable possession and enjoyment by the appellant of her property. Asto her complaint concerning smells coming out from smoke and evaporation of paint, thiscomplaint emanated from theevidence ofthe appellant and her mother which was notaccepted bythetrialjudgeand was 10 not supported by any of the other eleven witnesses called by the appellant. Itiswellsettled thatthisCourtdoesnotinterfere withthe findings of the trial Court on facts accepted by it unless such findings are inconsistent with theevidence orthe conclusions ofthe trialCourt 15 based on such facts are wrong. {Michaelidesv.R. C.Holding Ltd.

(1986)1 C.L.R. 65; Parmaxi v. Katsiola

(1985)1 C.L.R. 633; Kyriacou v.Petri&Others

(1985)1C.L.R. 275). • Counsel for theappellant persisted inarguing that the evidence accepted bythe trialCourtwaswronglyaccepted withoutbeingin 20 a position to advance any sound or legal argument why such evidence should not have been accepted. Having perused the evidence before the trial Court both in examination-in-chief and cross-examination and the findings of the learned trial Judge we have reached the conclusion that this 25 appeal is entirely unfounded and no sound reason has been advanced whythejudgment ofthetrialCourtshouldbe disturbed. In the result the appeal is dismissed with costs in favour of the respondent. Appeal dismissedwith costs. 30 618