GEORGE A. SARPONG vs. WISCONSIN UNIVERSITY COLEGE & OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT(COMMERCIAL DIVISION)
    ACCRA - A.D 2016
GEORGE A. SARPONG - (Plaintiff)
WISCONSIN UNIVERSITY COLEGE AND OTHERS - (Defendant)

DATE:  16TH JUNE, 2016
SUIT NO:  AP/43/2012
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS:  BRIGHT OKYERE AGYEKUM, ESQ. WITH JESSIE SARFO, ESQ. FOR THE PLAINTIFF
OLIVER ATSU ABADA, ESQ. FOR DEFENDANT
JUDGMENT

I preface this judgment with the words of John Milton, a 17th century poet who served under Oliver Cromwell in England, in his epic work, Paradise Lost. He writes:

 

They, looking back, all the eastern side beheld

Of Paradise, so late their happy seat,

Waved over by that flaming brand, the gate

With dreadful faces thronged and fiery arms:

Some natural tears they dropped, but wiped them soon;

The world was all before them, where to choose

Their place of rest, and Providence their guide;

They, hand in hand, with wandering steps and slow,

Through Eden took their solitary way.”

 

This sums up the tragedy of the case of the Plaintiff whose dream of an Eden like environment has been shattered by what he claims to be the activities of the defendants.

 

The plaintiff, a former contract law lecturer at the University of Ghana, Legon, who in the dying embers of his glittering career in the academia was the director of the Ghana School of Law, on the 3rd of July, 2012 conceived and birthed the writ at the of the High Court claiming the following reliefs:

a. An order to compel the Defendants to fulfill their promise made to the Plaintiff to relocate and compensate Plaintiff for the nuisance cause Plaintiff.

b. Damages for nuisance, invasion of privacy, deceit and/or fraud

c. Such further or other reliefs as in the circumstance may appear just, in particular, an order directed at Defendants to abate the nuisance and perpetual injunction restraining the Defendants whether by themselves, servants, agents, privies, whomsoever from interfering with Plaintiff and his family’s quite enjoyment of the land.

 

The basis of the prayer of plaintiff is adequately captured in the statement of claim that accompanied the filing of the writ. Plaintiff claims to be the owner of a seven bedroom property at Haatso Agbogba, Accra, a house he move into occupation in 2007 where he enjoyed total privacy more so as the area had been zoned for residential purposes. That this reminiscent paradise environment began to shake when just after a few years of occupation of this dream property the 1st defendant institution began construction of a large classroom block complex behind the wall in front of plaintiff’s house thereby blocking access to a portion of the property of plaintiff. This was to be the commencement of erosion of the joy and privacy from his property as 1st defendant then purchased an adjoining property, which had been a residential house, demolished same and started the construction of a building complex to be used as lecture halls. To plaintiff this edifice overlooks his house as it exposes his family to constant ocular view by 1st defendant’s students thereby violating his right to privacy and quiet enjoyment in clear violation of article 18 of the 1992 Constitution. To plaintiff, besides invasion of his privacy, the conduct of 1st defendant constitutes a veritable tort of nuisance. He particularizes the nuisance in paragraph 11 of his statement of claim as follows:

a. The use of the classroom adjacent to Plaintiff’s property by 1st Defendant’s students as places of worship particularly on Fridays and Sundays and at times when the occupiers of adjoining properties deserve quiet enjoyment of their properties.

b. The erection of a monstrous four classroom storey complex in an area zoned purely for residential purposes which said structure overlooks Plaintiff’s property thereby exposing same and its occupants to a permanent view by students and employees of Defendants –an act that seriously violates Plaintiff’s and his family’s rights to privacy and or quiet enjoyment.

c. The veranda of the fourth floor of the building mentioned in (b) supra is constructed in such a manner as to provide students with an unrestricted view to Plaintiff’s property despite his protestations to Defendants contractor on the site to seal off that part of the property.

d. Erection of the structures on a main access road thereby blocking access to a portion of Plaintiff’s property.

e. The reduction of an otherwise quite neigbourhood into a noisy environment created by the presence of unruly students.

 

Plaintiff further avers that he remonstrated with defendants to abate the nuisance but same fell on deaf ears. Subsequently defendants realized the nuisance they have caused and duly apologized to plaintiff with an offer to purchase the property of plaintiff for use as administrative office, relocate plaintiff and his family to a place of their convenience with 3rd defendant even suggesting relocation of plaintiff to Trasacco Valley plus a further $300.000 as compensation to plaintiff.

 

Acting on the verbal promises of defendants he prospected and negotiated for the acquisition of a property at Trassaco Valley and forwarded the cost to 2nd and 3rd defendants who failed to respond.

 

Plaintiff then proceeds to allege fraud and deceit on the part of 2nd and 3rd defendants. The particulars of the fraud and deceit have also been set out in paragraph 20 of the statement of claim as follows:

a. Assuring Plaintiff that Defendant will acquire Plaintiff’s property when Defendants knew that they had no intention of doing same.

b. Plaintiff had no reason to doubt the bona fides of the 2nd and 3rd Defendants, a Superior Court Judge and reverend minister of repute respectively.

c. Based on the representations made by the 2nd and 3rd Defendants, the Plaintiff acted to his detriment by staying his hands and allowing the Defendants to complete the construction of then University.

 

Plaintiff further complains that a notice erected has created the false impression that plaintiff’s house is part of the 1st defendant’s institution and thereby misleading persons to intrude into plaintiff’s house much to his danger, discomfort whiles 1st defendant has also diverted water supply to plaintiff’s house exacerbating his stress and putting him at further expense to procure water. In view of the all these he claims for the fulfillment of the promise to be moved to Trassaco Valley together with the other reliefs endorsed on the writ.

 

STATEMENT OF DEFENCE

Defendants in their statement of defence have ardently and vigorously resisted the claim of plaintiff as unfounded and contend that 1st defendant institution was fully operational at its present location with the requisite approval from the District Assembly in the year 2000 way before Plaintiff moved to the neigbourhood in 2007 and at the time plaintiff relocated to the vicinity there were already high rise buildings there and plaintiff had notice of the high rise building of the plaintiff. To 1st defendant the presence of its institution in the area has rather enhanced the value of the properties in the area with some converting their properties into hostels and other commercial ventures. Besides it instituted scholarship schemes which plaintiff’s own ward has been a beneficiary of that scheme. 1st defendant then deny the claim that 1st defendant institution was being a nuisance as neighbours have not had any cause to complain about any nuisance from its students.

 

1st defendant then proceeds to claim that it accepted the request by plaintiff to purchase his house and relocate him to avoid the incessant harassment, complaints and hostile attitude towards 1st defendant’s officers. And as a follow up it made an offer of $750.000 to the plaintiff which offer plaintiff rejected not for its inadequacy but for some other reasons. And after the rejection of the offer they did not hear from plaintiff again until its ward completed the school. It totally denied that it made an offer to relocate plaintiff to Trasacco plus a compensation of $US300.000 as they would have unjustly enriched the plaintiff.

 

And that the discussions centered on plaintiff being relocated to a gated community such as Regimmanuel but no definite promise was made to relocate him to Trasacco. That it secured funding from its bankers as part of the relocation and commissioned a valuation to be done on plaintiff’s property. It is rather the plaintiff that has behaved in an unreasonable manner by changing its position with intent to obtaining undue advantage and imposing terms far above his current status in life. To 1st defendant it is in lawful occupation by virtue of approved permits from the lawful authorities to operate the institution. And hence the plaintiff was not entitled to his claims.

 

The plaintiff in his reply joined issues with the defendants and contended that the discussions with the defendant did not feature any other property save that of Trasacco valley.

 

At the close of the pleadings a plethora of issues had been set down for determination. The issues from the plaintiff were:

a. Whether or not the area in which Plaintiff’s property is located is zoned purely for residential purposes.

b. Whether or not 1st defendant can lawfully operate a tertiary institution in an area zoned purely for residential purposes.

c. Whether or not there were high rise building on 1st Defendant’s property at the time Plaintiff relocated to his property.

d. Whether or not plaintiff enjoyed total privacy to the exclusion of adjoining owners as averred.

e. Whether or not 1st Defendant institution has enhanced the value of properties within the area including Plaintiff’s property.

f. Whether or not 1st Defendant property is built in such a way that it allow its occupants unrestricted view to Plaintiff’s thereby violating his right to privacy and quiet enjoyment.

g. Whether or not the Plaintiff acquiesced to the location of the 1st Defendant Institution by enrolling his ward and enjoyed full scholarship from the 1st Defendant Institution.

h. Whether or not the 1st Defendant was already in existence and operation prior to the construction and occupation of the Plaintiff

i. Whether or not 1st Defendant’s building were redesigned and open spaces sealed off to prevent permanent viewing of Plaintiff property

j. Whether or not the Plaintiff rejected the 1st Defendant’s offered purchase price of GH¢750,000.

k. Whether or not the commissioned valuation report submitted by the 1st Defendant was in respect of the Plaintiff’s property

l. Whether or not the valuation report was to enable 1st Defendant obtain a facility for the relocation of the Plaintiff.

m. Whether or not Plaintiff is unreasonable in his demand for purchase of his property, relocation by the 1st Defendant and compensation payable to him.

n. Whether or not the 1st Defendant provided water supply to the Plaintiff during temporary disruption of water supply to Plaintiff’s residence.

o. Whether or not the Plaintiff benefited from subsequent free supply of water in times of water shortage.

p. Whether or not the 1st Defendant has violated the privacy of the Plaintiff q. Any other issues arising from the pleadings.

 

EVALUATION OF THE EVIDENCE AND ANAYSIS OF THE LAW

Before commencing the evaluation of the evidence, I must place on record the real and substantial difficulty that afflicts me even though as a trial Judge I have not had the benefit of listening to any of the evidence of the parties in court. This has been so because by some unfortunate coincidence, so notorious in this country for me to recount here, and whose ramifications are still raging, the trial Judge that tried the case to conclusion, has not had the privilege to preside over the judgment of the matter. Not presiding as an appellate Judge, nonetheless, my evaluation is limited to only the evidence on record same as the task that confronts any appellate court. And that does not in any way derogate or detracts or steal the glow out of the findings to be made upon analysis of the evidence.

 

I cannot begin without first commenting on the multitude of issues that have been filed by both parties before the court for determination. I must confess that I am at a loss why a case such as this over twenty three issues should be set for determination. It was uncalled for and I can only re-echo the words of Atuguba JSC in the case of SMITH v BLANKSON [2007-2008] SCGLR 374 that: 

“In a simple case such as this one and on the deducible fundamental facts, the admission of twenty six issues for trials is shocking and unjustifiable, it only affords counsel the opportunity to throw waffle all over the place whether in terms of evidence or argument resulting in inordinate wastage of the courts time and resource”

 

I find some of the issues are quite duplicitous and needless for the resolution of the dispute between the parties. Every single paragraph in a pleading when traversed need not be set down as an issue for determination when it is palpable that it has no bearing to the final outcome of the case. It seems to me that all the issues could conveniently be discussed and resolved by the court under three main broad headings as to whether there was a promise or a contract for the relocation of the plaintiff to Trasacco valley plus an amount of US$300.000.00.. Indeed issues g, j, k, l, m in the issues and additional issues supra seems to be on the existence or non existence of such an agreement or contract or promise.

 

The second major issue which the others can be subsumed under is whether or not the presence, the activities of 1st defendant institution and its students constitute a veritable act of nuisance to the plaintiff to merit an adequate remedy from the court. As a corollary will be the determination as to whether the conduct of defendants amounted to fraud and deceit. Indeed issues a, b, c, d, e, f, h, i, n and p supra in one form or the other relates to the issue or matter of nuisance and the claim of deceit and fraud.

 

BURDEN OF PROOF

Though a familiar tune, nonetheless, I cannot gloss over the burden that is thrust on the shoulders of the parties in respect of this claim. The Evidence Act, NRCD 323 provides copious guidance on the relevant burden cast by the law on a party in respect of his claim. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 eloquently captures my thought and I convert same as mine. He notes that:

“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”

 

See also HENRY DOE SAMLAFO v. GREDA &ANOR. [2010] 26 GMJ 94, CA, MAC DAN v. GABRIEL GBORBLESHIE [2015] 85 GMJ 90 at 113; ABABIO v AKWASI III [1994-95] 1 GLR PART 11 774.

 

As plaintiff is making an allegation of a promise made for his relocation to a specific place in Accra, plus mouth watering compensation, it admits of no argument at all that he bears the burden of proof as well as the burden of persuasion to discharge on the balance of probabilities. How did the plaintiff discharge his burden in respect of the claim of a promise made to him. And how did the defendants rebut that?

 

Plaintiff testified in person and called a neighbour as Pw1, Nana Kwame Osei Fordjour. The substance of the testimony of plaintiff was in line with his pleadings. He tendered the following relevant writings in conformity with section 179 of the Evidence Act, as exhibits in support of his claim of proving the existence of the facts that he alleges: a land title document of his house as Ex ‘A’, letter authored by plaintiff on 4th August, 2008 to 1st defendant and copied 2nd defendant and Justice Akoto Bamfo (Mrs.) as Ex ‘B’, Ex ‘C’ is a letter from 1st defendant addressed to the plaintiff , a series of complaints made by plaintiff in the form of letters and 1st defendants response were admitted as ex ‘D’ series. Then enquiries made and response from Trassaco Valley is on record as Ex ‘E’. Ex ‘F’ is a further complaint registered by the plaintiff of the windows of a four storey building which needed to be looked at by the 1st defendant. Protest mounted against the erection of a bill board is evidenced in

Ex ‘G’ series’, a valuation report sent to plaintiff at the instance of 1st defendant as ex ‘H’ and finally Ex ‘J’.

 

From the evidence adduced by plaintiff on record are there any pieces of evidence to lead the court to conclude that it was the consensus among the parties that the defendants were to relocate the plaintiff to Trassaco Valley or that a promise was made by the defendants to the plaintiff.

 

Plaintiff in his evidence states as follows in support of the promise that he alleges that:

“... as the nuisance continued they came to me formally and pleaded with me that I should go for a place to be relocated and then they would also pay compensation... the compensation we agreed upon was Three Hundred Thousand Dollars ($300.000) ... so I went to Trassaco and met the officials of Trassaco who game me documentation on two properties which I considered suitable a Kington and a Shah. I brought the documentations home and I wrote to the defendants. The defendants did not react by this they had virtually completed the four storey building so I realised that I had just been duped, defrauded, my lord, it was just a trick to hold my hands...”

 

The defendants have denied making any promise of relocating the plaintiff to Trassaco Valley plus all the other incentives the plaintiff testify to. Indeed of particular relevance in resolving the issues here will be Ex ‘N’ being a credit approval to 1st defendant part of which was to be used to acquire a two storey building, ostensibly the plaintiff’s property, Ex Q being a letter written by 1st defendant to its bankers that the owner of the property that they intended to buy has opted not to sell the property.

 

I have taken a look at Ex “C” which I find to be very instructive in resolving an alleged promise to resettle the plaintiff in Trassaco Valley. It is necessary that I quote this letter from 1st defendant to Plaintiff on 22nd September, 2010. It states:

 

“Proposal to Acquire Your Property located at Haatso

I recall your numerous complaints about the conduct of our students and construction workers and discussions between you and Mr. Justice Duose, chairman of the council.

 

We wish to humbly invite to submit terms upon which you may relocate for your convenience. We regret any inconvenience created”

 

There is no doubt from the evidence that Plaintiff acting on this invitation to submit proposal for his relocation replied with his own proposal as evidenced by plaintiff’s letter of 8th July, 2011, ten months after defendant’s invitation for the proposal. And this is what the plaintiff proposed in Ex “D1”:

“I am willing to relocate to either to a 5 or 6 bedroom house (with 1 outhouse) preferably a Shah or Kinsgton at Trasacco Valley plus a cash of US$300.000 or its cedi equivalent. Attached is the price list of the houses on the subject.

I consider the foregoing as an acceptable compensation for the property together with the garden which has 130 years of lease life left as opposed to the 50 years for the properties at Trassaco valley”.

 

A look at the attachment that plaintiff refers to in his letter of Ex D1’ show that the Shah was for US$900.000 whiles the Kingston was priced at US$810.000. Again these prices does not include the price of the land. If the prices of the land and other incidental expenses are added the Shah came to US$1.276.500; whiles the Kingston came to US$1.398.365. These demands made excludes the compensation of US$300.000 and another demand on defendants to pay for yearly charges that will amounts to US$165.000.00 to the Plaintiff.

 

I have carefully read the evidence on record and I cannot find any response to the demands made by Plaintiff. However, the question is if the defendants did not respond to this letter Ex ‘D1’ with its attachment does it mean that in contract when the Plaintiff’s proposal was not responded to a valid agreement had come into being. I do not think so. If indeed defendants offered to relocate plaintiff to Trasacco Valley what were the terms of this relocation? How did the plaintiff come to settle on the two properties of Shah and Kingston? How come he did not opt for any property at all at Trasacco Valley such as Havana, Sultan, Windsor which were more expensive and would defendants have been asked to pay simply because they had invited plaintiff per Ex ‘C’ to bring his proposal for settlement.

 

Before I come to the law, in terms of evidence the plaintiff exposed the lack of consensus ad idem between the parties and as to how they never agreed to settle the plaintiff at Trassaco Valley or better still that defendants never promised Plaintiff of any relocation from Haatso to Trasaaco as a commensurate environment.

 

Barely a week after defendant’s letter of Ex ‘C’ to plaintiff to submit proposal for relocation, plaintiff wrote on 14th July, 2011 in respect of construction work that defendant was undertaking and expressed his fears and betrayed the fact that no such promise to Trasaaco Valley had been made to him. I quote the letter:

“Re: Constructional Works at Wisconsin University

I note that contrary to the verbal assurances you gave me sometime ago, the property under construction has many windows overlooking my property.

This may not be important in the event that our current negotiations on my relocation are concluded to our mutual satisfaction. It may however, be an issue in the event that we are unable to reach an agreement”[emphasis mine]

 

What would be an issue that Plaintiff alludes to in the letter is the complaint of the windows overlooking his property. So the plaintiff recognised subsequent to the receipt of the letter of 7th July, 2011 from defendants calling on him to submit his proposal that there had been no agreement reached to their mutual satisfaction for him to rely on mere quotation from the managers of Trasacco Valley estates as a basis to claim a promise from defendants to him.

 

There is nothing on the face of Ex ‘C’ for it to constitute a valid offer to plaintiff to submit a bill for the payment of a house in Trassaco Valley. For in the case of NTHC v ANTWI [2009] SCGLR 117 at 125 Date-Bah JSC notes that an offer indicates by words or conduct by the offeror that he is prepared to be bound by the contract in the terms expressed in the offer if only the offeree communicates his acceptance to those terms. An offer must be definite and final leaving no room for further negotiations.

 

Even if the court is wrong on this point that there was no offer from the defendants; could it be said that the communications in Ex D’ series constitutes the offer from plaintiff? If it was then; was it accepted by the defendants by their mere silence when Plaintiff himself made a volte face in Ex ‘D1’ that they had not yet concluded negotiations to their mutual benefit.

 

From the Exhibits tendered by the defendants, there is little doubt that the defendants had a different meaning regarding their relocation of Plaintiff. Whiles 2nd and 3rd defendants insisted that by relocation they intended to purchase plaintiff’s house for him to buy the house of his choice. A few references to the record of proceedings will lay this matter to rest.

 

For instance the 3rd defendant had a different view as to what they agreed when he testified that:

“... I talked with the chairman of the University Council Justice Duose who told me that he was a friend to Mr. Sarpong so we should go together. So we went together and then we chatted with him and we said we are prepared to purchase the house and the amount that we are discussing to cut matters short was US$750.000.... so when the information reached us I contacted ADB to see if they willing to help us to purchase that property for 750.000 USD. ADB agreed, sent a voucher and a cheque was issued for US$750.000 to purchase the property. When we finished we were ready to give him the cheque, he changed his mind”.

 

2nd defendant on the hand both in his evidence and under cross examination noted occupying a position analogous with that of the plaintiff as Appeals Court Judge, that under no circumstance did he give any impression to the plaintiff to resettle him in Trassaco Valley.

 

In exhibit ‘N’ there is evidence of an approval of a facility from Agricultural Development Bank (ADB). There is an amount for Ghc1.000.000 (one million) that was secured for the purchase of the property of plaintiff. And in Ex ‘Q’ 3rd defendant wrote to the bankers that:

“we are very sorry to say that the Ghc1.000.000 approved for the acquisition of a 2 storey residential property did not materialize. The owner decided not to sell the property again”.

 

They proceeded to ask for leave to use the monies for the construction of a computer and a library complex. With such vehement denial of any promise to settle the plaintiff at Trasacco Valley, the court would have expected the plaintiff that bears the burden of proof to have demonstrated the bases of the claim or promise. With the exception of Ex ‘C’ and his response to the defendants there is nothing on record for me to find that defendants promised to settle the plaintiff at Trassaco plus those monies he seeks. Indeed I find as a fact that there was no such promise whatsoever to the plaintiff.

 

If anything at all it was the plaintiff that made that proposal for the consideration of the defendants. And can it be said that the silence of the defendants amounted to an acceptance of that proposal? Acceptance must be a final and unqualified expression of assent to the terms provided. And such unqualified acceptance must as a matter law be communicated to the offeror. See the cases of FOFIE v ZANYO [1992] 2 GLR 475; ENTORES LTD v MILES FAR EAST CORPORATION. The only exception to this rule is unilateral contracts where a person may accept an offer by performance. It is trite that silence cannot constitute acceptance. For acceptance must be deliberate and willed act and silence alone may have occurred for variant reasons. Such as in the case of FELTHOUSE v BINDLEY [1862] 11CB (NS); 142 ER 1037 where the plaintiff wrote to his nephew, John on February 2 offering to buy his horse for 30 pounds 15s and added “if I hear no more about him, I consider the horse mine at the price” the nephew did not reply. The horse was auctioned and the plaintiff sued. It was held that the offer had not been accepted as the silence was not enough to constitute acceptance. With a proposal to accept those whooping figures and the auspicious silence of the defendants would not make a contract come into being. As I find that defendants did not promise those things and it was the plaintiff instead that made those demand in exchange for his house.

 

Again there is nothing from the conduct of the defendants upon receipt of the plaintiff’s proposal that they manifested an adoption or acceptance of those proposals. The parties as whole never agreed to the very terms of the contract for the relocation of Plaintiff as to pay him money for the house or to buy a new one for him. They never agreed on the specific location that plaintiff was to move to and there was no agreement as to any amount that plaintiff was to be given. I am not unaware that Plaintiff’s counsel in his written address has made mention of the enforceability of oral contracts under section 11 of the Contracts Act. I find no such oral contract here worth enforcing. And even if the court is wrong on this finding of the non existence of any oral contract; it is completely immaterial even if oral contract existed. Why? The law is clear that any transaction affecting land must be evidenced in writing. For section 1 of the Conveyancing Act, NRCD 175 states as follows:

‘A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such a writing by the provisions of section 3.

(2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee’.

 

The plaintiffs claim does not fall within any of the exceptions and as the negotiations centred on landed properties as plaintiff claim of a relocation to a house at Trassaco Valley it ought to be in writing to be of any effect and any attempt to rely on an oral agreement which in any way does not exist cannot help the cause of the plaintiff. – See Benin JSC on the effect of sections SEC 1, 2, 3 OF NRCD 175 in the recent unreported case of SARPONG (DECD) SUB BY NANA K KODUA v FRANKLIN ADOBOBI JANTUAH J4/15/15; 17th Feb., 2016; wherein his Lordship noted that a transaction affecting land in a period of more than three years ought to be in writing to be effective.

 

Accordingly, the first relief of plaintiff is dismissed as unconvincing, unproven, without basis, unmeritorious and fanciful.

 

ALLEGATION OF NUISANCE

There are as many as ten issues similarly or differently framed regarding the claim of plaintiff for damages for nuisance and they include issues a, b, c, d, e, f, h, I, n and p. A few of them are worth repeating here:

a. Whether or not the area in which Plaintiff’s property is located is zoned purely for residential purposes.

b. Whether or not 1st defendant can lawfully operate a tertiary institution in an area zoned purely for residential purposes.

c. Whether or not there were high rise building on 1st Defendant’s property at the time Plaintiff relocated to his property.

d. Whether or not plaintiff enjoyed total privacy to the exclusion of adjoining owners as averred.

e. Whether or not 1st Defendant institution has enhanced the value of properties within the area including Plaintiff’s property.

f. Whether or not 1st Defendant property is built in such a way that it allows its occupants unrestricted view to Plaintiff’s thereby violating his right to privacy and quiet enjoyment

h. Whether or not the 1st Defendant was already in existence and operation prior to the construction and occupation of the Plaintiff

i. Whether or not 1st Defendant’s building were redesigned and open spaces sealed off to prevent permanent viewing of Plaintiff property

p. Whether or not the 1st Defendant has violated the privacy of the Plaintiff.

 

There is no doubt as counsel for plaintiff aptly captures it in his written address to the court of the protection afforded by Constitution of a citizens right to the privacy of his home and property under article 18(2) of the Constitution which states as follows.

“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others”.

 

Plaintiff gave copious evidence in support of his claim of private nuisance. The conclusion of his evidence in chief sums up his complaint of nuisance perpetuated by 1st defendant and its students: He narrates that:

“... in sum I will describe the conduct of the defendant as one of a shuttered dream over the years. I acquired this plot in 1985 and started development in the 90’s. I intended this to be my final resting place... my lord as I sit here I am very broken man I close from work and look around at times I am driven to tears. A house I built in an otherwise serene area zoned for purely residential purposes has now turned into a virtually a university campus where you have students and my lord will appreciate how students behave. Right behind me and then to my right and frontage structures that provide open access denying me privacy, structures that have denied me of water facilities, structures that have denied me access to proper ventilation. My lord structures that have gotten me worried about security...”

 

To add to what plaintiff enumerated as acts of 1st defendant constituting nuisance is Ex D2 written by plaintiff to defendant and captioned “Your Acts of Nuisance”. In the said letter the plaintiff took pains to categorize what he alleges to be the acts of nuisance as follows:

 

“I note that despite several protestations written and verbal, your institution including the students continue to engage in several acts of nuisance and or annoyance to my household and other adjoining occupiers. These include but not limited to:

a. The use of the classrooms adjacent to my property as places of worship particularly on Fridays and Sundays and at times when occupiers of adjoining properties deserve quite enjoyment of their properties

b. The erection of a monstrous four classroom storey complex in an area zoned purely for residential purposes which said structures overlook my property thereby exposing same and its occupants a permanent view by students – an act that violates our rights to privacy and or quite enjoyment as a family

c. You have pulled down the house adjacent to my property which I am informed you purchased from the previous owner; apparently to undertake another constructional activity on the site thereby exposing my property to the public at large without taking any precautions such as the erection of a fence to enclose the area.

d. The veranda of the fourth floor of the building mentioned in (b) supra is constructed in such a manner as to provide students with an unrestricted view to my property despite my protestations to your contractor on the site to seal off that part of the property

e. Erection of the structure on the main access road thereby blocking access to a portion of my property”

 

These adequately sum up the claim of nuisance by the plaintiff. There seems to be various complaints of nuisance ranging from noise making by students, erection of 1st defendant’s properties in a manner as to block access to air and ventilation to plaintiff as well as a good view, non availability of water due to an alleged use of pumps by 1st defendant to deny plaintiff water and thereby resorting to the drilling of a bore hole to the tune of Ghc9.000.00, the mounting of a sign board misleading persons to come to the plaintiff’s house, running of a University in an area that was otherwise serene and a first class residential area etc.

 

The response of the defendants have been varied. Whiles they concede to some nuisance created and assures plaintiff of remedial measures, for some they resist as not being responsible. For instance defendants only concede in terms of non availability of water by plaintiff that it was only a short time that they were undertaking construction that plaintiff was denied access to water but took steps to ensure that plaintiff was supplied with water but deny that if plaintiff is unable to have access to water now it should be liable as it does not use any powerful pumps to deny plaintiff of water. Again in respect of the use of its University, defendant put in Ex ‘M’ to show that it has the appropriate permit to construct and use the premises for a University and cannot be liable for any nuisance.

 

Private nuisance was defined in BAMFORD v TURNLEY [1860] 3 B & S 62 as

"any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land".

 

While there is no set definition of what is or is not unreasonable, factors that are taken into account include any "abnormal sensitivity" of the claimant, the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant.

 

For defendant to be liable in private nuisance, the plaintiff must demonstrate to the court that the defendant's actions caused damage. This can be physical damage, as in the case of ST. HELEN’S SMELTING v TIPPING [1865] 11HLC 642 or discomfort and inconvenience. The test for remoteness of damage as established in the case of CAMBRIDGE WATER LTD v EASTERN COUNTIES LEATHER PLC [1994] ALL ER 53 in nuisance is reasonable foreseeability if the defendant was using his land unreasonably and causing a nuisance, the defendant is liable even if they used reasonable care to avoid creating a nuisance. The test is whether or not the nuisance was reasonably foreseeable; if it was, the defendant is expected to avoid it.

 

The Plaintiff must also show that the actions of the 1st defendant has caused interference with the use or enjoyment of his land. This interference could be noise, as it was held in the case of CHRISTIE v DAVEY [1893] 1 CH. D 316 or just a mere smell, as was held in the case of WHEELER v J.J. SAUNDERS [1995] 2 ALL ER 697

 

Applying the principles I start with the allegation of noise making by the students and the sign board that Plaintiff claim it mislead persons to mistake the house of the plaintiff as part of the school. The claim was corroborated by Pw1 as defendant seems to have apologized for the inconvenience caused plaintiff. The noise has caused discomfort to the plaintiff and students making noise in a school in a residential area was something that was foreseeable by the defendants and I find 1st defendant liable.

 

What then of the high rise buildings that plaintiff complains about in a residential neighbourhood? The locality where the interference occurred may influence the determination as to whether or not a nuisance can be said to be unreasonable. For it has been noted in the case of STURGES v BRIDGMAN [1879] LR 11 CH 852 that:

"what would be a nuisance in Belgrave Square [a residential area] would not necessarily be so in Bermondsey [a smelly industrial area]".

 

It is the long held view that if an activity is out of place with the locality, it is likely to be held as unreasonable. Nonetheless; it must be noted that, the nature of areas can change over time as the grant of a building permit for the construction of a commercial activity in a purely residential neighbourhood may have the capacity to change the character of an area, even though the grant of such a building permit alone cannot be an immunity from a charge of a nuisance against a defendant. See the case of GILLINGHAM BOROUGH COUNCIL v MEDWAY (CHATHAM) DOCK CO LTD. [1993] Q. B. 343. I take judicial notice of the fact that the area where the parties are located is a residential area but not a first class one as plaintiff wants the court to believe. Besides the main road from Legon botanical gardens to Agbobga township all the way to Old Ashongman; second the main road from Atomic flyover to the Atomic police station and third the Ecomog road which leads to Agbobga which are tarred, virtually the rest of the roads in Haatso, are untarred and dusty, kiosk are littered in many corners of this suburb. It cannot be said that it is an area that can rob shoulders with airport residential, cantonments, ridge let alone Trassaco Valley.

 

1st defendant has duly been issued with a permit regarding the buildings the plaintiff complains about and under that circumstances; I find that the structures of the defendant cannot constitute a nuisance. And the right to privacy of plaintiff as a constitutional right has not been violated by the defendants. The use of the buildings for educational purposes is a reasonable use of the premises of the 1st defendant. The court will be unfair to the 1st defendant to order the removal of such massive investment to only provide an ‘object of delight’ to plaintiff to have a nice view and access to sunshine.

 

Again, besides the bare claim by plaintiff that the activities of defendants have denied him access to portable water thus compelling him to drill a bore hole at the latter part of December, 2014; no evidence was led in support of the use of powerful pumps to divert water from plaintiff’s house and for defendant institution to be called upon to be liable for expenses incurred in curing a perennial water problem in the house of plaintiff, a problem which afflicts most homes in Accra. Why should 1st defendant be called upon to pay for the water consumed by plaintiff. Indeed this was not even one of the claims made by plaintiff in the reliefs endorsed on the writ of summons. I do not think that the time tested principle established in DAM v ADDO [1962] 1 GLR 200 has in any way been overruled in the case of HANNA ASSI v REG.... The attempt to claim monies for drilling of borehole in plaintiff’s house is dismissed.

 

FRAUD AND DECEIT

Plaintiff has also alleged fraud and deceit on the part of 2nd and 3rd defendants and plaintiff and this is not a light burden to discharge in law.

 

In the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord McNaughton noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:

“fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”

 

Plaintiff on the issue of fraud and the deceit bears the burden of proof to show that the conduct of the officials of 1st defendants towards him had been fraudulent and that 2nd and 3rd defendants acted fraudulently and acted dishonestly as fraud is dishonesty as describes by Dr. Twum JSC in the case of BROWN v QUARSHIGAH [2003-2004] 2 SCGLR 930 and at 946 stated as follows:

‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’

 

The standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:

‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.

 

In law, how to prove fraud as a crime have been set out in the English case of DERRY v PEEK [1889]

A.C. 337 at 374 the court said:

‘fraud is proved when it is shown that a false representation had been made 1 knowingly or 2 without belief in its truth or 3 recklessly careless whether it be true or false’.

 

Deceit on the hand in tort is nothing but misrepresentation when it appears in the law of contract. Misrepresentation in contract or deceit in tort occurs when a person makes a factual misrepresentation, knowing it to be false or having no belief in its truth and being reckless as to whether it is true and intending it to be relied on by the recipient, and the recipient acts to his detriment in relying on such a statement. See the case of BRANDFORD BUILDING SOCIETY v BORDERS [1942] 2 ALL ER 205

 

What evidence is there on record to show that plaintiff proved his claim of fraud and deceit against the 2nd and 3rd defendants?

 

The plaintiff claim that 2nd and 3rd defendants assured him that they were going to acquire his property but they knew very well that they had no such intention and based on the representations the plaintiff refrained from taking any action regarding the buildings that 1st defendant was constructing to his detriment. As part of the fraud and deceit the defendants sent a person to value his property only to be furnished with a report that was not his house and this convinced him that he had been duped as the defendants only wanted to buy time to complete the monstrous buildings. It seems much score was placed on Ex ‘2’ the valuation report served on the plaintiff as evidence of the deception of the Plaintiff. And when plaintiff came under cross examination regarding whether plaintiff reverted to defendants when he was served with a wrong report; this was the exchange:

Q. Did you draw the attention of the defendants to the effect that a different house other than the one you had shown their so-called agent was what was brought to you.

A. My Lord I considered this as one of the several tricks on their part as it were to resile from a gentleman’s agreement and a binding one at that which they had arrived at with me.

 

However the 2nd defendant had an explanation as to how Ex ‘2’ landed in the hands of plaintiff:

“If this was sent to him ... it would be an error ... and if plaintiff had this document and realised it was wrong, I am surprised he did not refer it back to us. I was here when he said this is the document that broke and drove him to come to court. My Lord this is complete error, we have no hand in it...”.

 

I find nothing on record to impel me to the conclusion that plaintiff has come to, that the submission to him of Ex ‘2’ in respect of a different property was deliberate and part of the scheme to defraud and deceive him. Fraud and deceit cannot be alleged and proved in such pedestrian and casual manner more so when a criminal standard was the expected standard of prove of fraud. And same is also dismissed as unproven and woefully falling far below the standard of proof of fraud and deceit.

 

Save for the finding of 1st defendant for nuisance in respect of the noise of the students and the sign board mounted, the claim of plaintiff is dismissed in its entirety. What is the appropriate remedy for the tort of nuisance?

 

It seems to me that there are three possible remedies in nuisance; one, injunctions, two damages and three abatement. How possible would the court be able to injunct students from making noise in their school? And if they fail to comply how would the court punish the students? The appropriate remedy is in damages as Plaintiff indeed asks for same. Damages are a monetary sum paid by the defendant for the claimant's loss of enjoyment or any physical damage suffered. However in cases such as this the damages to be awarded is at large and only nominal in nature as no specific pecuniary loss has been proved. I quote with approval the words of Justice Dr. Date – Bah JSC in the case of AWUNI v WEST AFRICAN EXAMINATIONS COUNCIL SCGLR [2003-2004] 471 when the learned Justice relied on the dictum of Lord Hailsham that:

 

“ A ... difficulty has been found in trying to apply restitution in integrum to the non-pecuniary elements ...,such as pain and suffering. In such situations, what the courts may end up with is not true compensation but what Romer LJ described in Rushton v National Coal Board (1953) 493 at 502 as “notional or theoretical compensation to take the place of that which is not possible, namely, actual compensation.’

 

“at large” in the sense in which Lord Hailsham LC used this expression in Cassell & Co Ltd v Broome (1972)

 

AC 1027 at 1073, HL where he said:

 

“The expression ‘at large’ should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequence no precise limit was be set in extent.... Lord Devlin uses the term in this sense in Rookes v Barnard (1964) AC 1129, 1221, when he defines the phrase as meaning all cases where “the award is not limited to the pecuniary loss that can be specifically proved.” But I suspect that he was there guilty of a neologism. If I am wrong, it is a convenient use and should be repeated”.

 

For the noise and discomfort created by the erection of the signboard it is only general damages that could be awarded by the court to serve as a vindication of the rights of the plaintiff that has been violated by the 1st defendant’s students. See the case of DELMAS AGENCY GHANA LTD v FOOD DISTRIBUTORS INT. [2007 – 2008] SCGLR 748. See also the recent decision of the Supreme Court in ASKUS LTD v HARRY BOAKYE &

OTHERS J4/14/15 dated 20th April, 2016, judgment of Appau JSC.

For the noise which has caused annoyance and inconvenience to the plaintiff I assess general damages to be paid by the 1st defendant to the tune of GH¢10.000.00.

 

In the exercise of the discretion of the court taking into consideration the dismissal of the more weightier and substantial claims of the plaintiff, I find it just and fair not to award cost in favour of any of the parties.

 

Each party to bear its own cost.