NAT LOMO MAINOO (Plaintiff/Appellant)

vs.

AIRTEL GHANA LIMITED (Defendant/Respondent)

JUDGMENT

---

KUSI-APPIAH, J.A.:

By his writ of summons filed on the 3^rd day of February 2011, the plaintiff/appellant brought this action against the defendant/respondent for several declarations inter alia, an order compelling the defendant to remove its mast and base station, an injunction restraining the defendant from further operating the base station and mast near the plaintiff’s house, damages for violation of statutes and for nuisance. I will refer to the parties in the manner they appeared at the court below.

 

The case of the plaintiff as gathered from his pleadings and evidence at the trial was that sometime in 2008, the defendant erected a mast and base station at a location at Spintex Okpoigonno which is 29.5m in proximity to plaintiff’s house. According to the plaintiff, the defendant did not obtain his consent prior to the erection of the said mast as required by the 2006 Guidelines for Installation of Phone Mast. Neither did the defendant obtain the necessary permits from the statutory bodies whose authorization is a pre-requisite for the installation of the mast and base station.

 

He testified that the defendant company’s construction and operation of the phone mast and base station without the required statutory clearance, approval and permit from the Environmental Protection Agency, Town and Country Planning Department, National Communication Authority, etc. is illegal and violates the said statutory bodies.

 

The plaintiff contended that per the Guidelines of 2006 developed by the players in the communication industry and other research and academic write-ups, there is a high probability of health risk or hazard associated with telephone mast.

 

The defendant resisted the plaintiff’s claim by its statement of defence filed on 11^th March, 2011 and stated that the plaintiff was not entitled to any of his claims. It contended that even if at the commencement of construction, not all permits had been obtained, it duly obtained the necessary permits before or during the operation of the base station. The defendant company alleged that there is no conclusive evidence in the telecommunications or health industries that suggest any radiation emitted from phone mast is harmful to human health.

 

 At the close of pleadings, the following issues were set down for trial:

“(1) Whether or not the construction and operation of a phone mast and base station by the defendant close to the plaintiff’s house without consulting the plaintiff constitutes unreasonable and unlawful interference with the comfortable and convenient enjoyment by the plaintiff of his property.

(2) Whether or not the said phone mast poses a health hazard to the plaintiff.

(3) Whether or not the siting of the said phone mast and base station close to plaintiff’s property has devalued the said property.

(4)Whether or not the construction and operation of the phone mast and base station aforesaid by the defendant without a prior permit from the Environmental Protection Agency, is unlawful and illegal.

(5) Whether or not the construction and operation of a phone mast and base station close to the plaintiff’s house in a purely residential area, without a prior environmental permit contrives Articles 36(9) and 41(K) of the 1992 Construction.

(6) Whether or not the defendant breached Sections 49 and 64 of the Local Government Act, 1993 (Act 462) by failing to obtain permit from the Town and Country Planning Department of the Tema Metropolitan Assembly before erecting the said mast and base station.

(7) Any other issue(s) arising from the pleadings.”

 

 After examining and evaluating the evidence adduced by the parties and their witness(es), the learned trial Judge dismissed the plaintiff’s claim in this matter. The plaintiff being dissatisfied with the court’s decision, appealed to this court per a Notice of Appeal dated 13^th March, 2015 on the sole ground that “the judgment is against the weight of evidence”.

 

This appeal is premised upon the contention that the judgment is against the weight of evidence, which is, a call on us to rehear the appeal by analyzing the record of appeal before us, taking into account the testimonies and documentary as well as any other evidence adduced at the trial and arriving at a conclusion one way or the other. This is the import of the numerous decisions of the courts on the point. Notable among these are: Tuakwa vrs. Bosom (2001-2002) S.C.G.L.R. 61; Djin vrs. Musah (2007-2008) 1 S.C.G.L.R. 686; Oppong Kofi vrs. Attibrukusu III (2011) S.C.G.L.R. 176.

 

In Akuffo Addo vrs. Catheline (1992) 1 G.L.R. 377 at 379 holding 3, the Supreme Court held that: “When an appellant exercised the right vested in him and appealed on the ground that judgment was against the weight of evidence, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts.”

 

Again, in the Djin case (supra), the Supreme Court per Aninakwa J.S.C. (of blessed memory) at page 691 of the report said:

“When an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”

 

From the record of appeal before us, it is not in dispute that this appeal was initiated by the plaintiff. He therefore has the burden or onus to demonstrate clearly to this court what lapses he noticed in the judgment appealed against to warrant our interference.

 

Under this omnibus ground, I intend to determine the following particulars which the appellant has raised as lapses arising from the decision appealed from:

 

The validity of the 2006 Guidelines

 

Requirement of community consultation and the invalidity of the defendant’s EPA permit

 

Details of the defendant’s statutory violations

 

Nuisance

 

Before resolving the above lapses, I think it is necessary to point out that this case deals basically with the issue of land use, property rights and environmental law. The ability to own, control and use land continues to hold special place in our society because it is inextricably tied to the concept of individual liberty and property rights.

 

Given these dimensions and scale, I think that environmental protection laws reflect a sense of community wherein the health and safety of individuals are as important as the economic well-being of the nation as a whole. The foregoing briefly represents the law and practice that we must apply in this case.

 

THE VALIDITY OF THE 2006 GUIDELINES

The plaintiff’s case under this segment of appeal is essentially that since the defendant did not challenge the existence of the 2006 guidelines during cross-examination it is bound by it. According to the plaintiff, since the 2006 guidelines was the only existing law or legal framework in operation for installation of masts at the time the defendant erected its masts in 2008, it was bound to comply with the dictates of that law and nothing else.

 

The defendant contended otherwise. It submitted that the defendant never denied the existence of the 2006 Guidelines but testified that that document was not operational as same was rejected by the industry players for their non-involvement in the development of that guidelines. The defendant submitted that in place of the 2006 guidelines, the 2010 guidelines was prepared and gazette by the Government of Ghana. In effect, the 2006 Guidelines could not be relied on.

 

A careful perusal of the record of appeal indicate that the 2006 guidelines was replaced by the 2010 guidelines following the rejection of the 2006 guidelines by the industry players. The undisputed evidence of Dw2, Dr. Joseph Kwabena Amoako, a Research Scientist at the Radiation Protection Institute, Ghana Atomic Energy Commission who was involved in both the 2006 and 2010 guidelines, corroborated the evidence of the defendant that the 2006 guideline was rejected and consequently not operational.

 

It follows that the over reliance on the 2006 guidelines by the plaintiff serves no useful purpose as the 2010 guidelines provides a moratorium of 5 years for all masts constructed before its adoption. And so long as the defendant’s erected its masts in 2008 but availed itself of the said moratorium and paid the penalties thereof, the issue of the 2006 guidelines becomes moot. Exhibit 6, page 679 of the record of appeal under the 2010 guidelines, point 6/0 titled repeal reads:

“These guidelines supersedes any other guidelines or specifications, made by the National Communications Authority for the regulation of construction of communication towers.”

 

REQUIREMENT OF COMMUNITY CONSULTATION AND THE INVALIDITY OF THE DEFENDANT’S EPA PERMIT

Under this ground of appeal, the plaintiff questions the legal basis and the validity of the defendant’s EPA permit when it failed to conduct the community consultation which is a condition precedent to the grant of the said permit.

 

The plaintiff contended here that the permit was issued without the community consultation component being undertaken. He supported his stand with the assertion that he was not consulted and further stated that since the section on community consultation was not filled in the EPA form Exhibit G, it means the same was not done.

 

This argument is faulty because it fails to appreciate the extent of the burden to be met by the plaintiff. What is required is credible evidence which must satisfy the two fold burdens stipulated by our rules of evidence, N.R.C.D. 323. The first is a burden to produce the required evidence and the second, that of persuasion. Sections 10 and 11 of the Evidence Act (N.R.C.D. 323) are the relevant sections. This burden is not met merely by plaintiff saying that he was not consulted when the plaintiff is not resident in the locality. In any case, it is not a requirement that the absentee landlords be located and consulted on developments in the area. Similarly, this burden is not met merely by lamenting that the section on community consultation was not filled in the EPA form – Exhibit G.

 

In the instant case, since the plaintiff is alleging that the permit was acquired without due process (i.e. community consultation), the plaintiff is enjoined by law to prove that the EPA permit was irregularly obtained or invalid. Put differently, the plaintiff is duty bound to prove through corroborative evidence that the consultation was actually not done. The burden did not shift to the defendant to prove it conducted consultation.

 

However, the plaintiff failed to call any person(s) living in the locality to attest to the fact that no community consultation sessions were held. Neither did the plaintiff also call the EPA official to substantiate his claim or provide any evidence that the permit was irregularly obtained or that certain key aspects needed to obtain the permit were not undertaken. In the absence of such evidence, it can only be presumed as per Section 37 of the Evidence Act (N.R.C.D. 323) that an official duty has been regularly performed. See G.P.H.A. vrs. NOVA Complex Ltd. (2007-2008) S.C.G.L.R. 806 at 824-825.

 

In any event, the statement of the plaintiff that no community consultation was done by the defendant was not only vigorously opposed in cross-examination but was also controverted by the evidence of Dw1, one Ephraim Junu, a site Acquisition Supervisor of Defendant’s company. The evidence of Dw1 clearly shows that community consultation was conducted because without it the E.P.A. would not have granted permit for the site. The singular fact that E.P.A. granted the permit is a clear evidence that the defendant had satisfied the E.P.A. as to its requirements. Exhibit E, a letter from the E.P.A. dated January 18, 2011 (page 571 of the ROA) states:

“Our records indicate that the company submitted a completed environmental assessment registration form that was duly processed and a permit was issued to Zain Ghana Limited for the site in question (Spintex Okpoigonno) on May 8, 2009.”

 

 It is significant to note that the letter from the EPA – Exhibit E above stated, presupposes that before a permit is issued due diligence would have been taken to ensure all is right. Simply put, the issuance of the permit presupposes that all conditions precedent to the issuance of the certificate have been met.

 

From the foregoing, it is obvious that the plaintiff was not able to lead any credible evidence to show that community consultation was not conducted and consequently the EPA permit that was granted was invalid. I would not describe the plaintiff’s bare assertion that no community consultation was undertaken as sufficient in law to prove his claim that the EPA permit that was granted defendant herein on 13/1/2011 was invalid.

 

The second and third segments of the appeal also fail.

 

DETAILS OF THE DEFENDANT’S STATUTORY VIOLATIONS

Under this segment of appeal, the appellant’s complaint is that the respondent did not comply with the mandatory statutory provision which states that a person who intends to construct a mast or tower must first obtain the relevant permits and certificates from the accredited institutions before erecting the mast.

 

Learned counsel for the plaintiff/appellant submitted that Regulations 1(1) and (2) of the Environmental Assessment Regulations 1999 provides that a person intending to construct a mast, must first obtain a permit from that Agency prior to the commencement of that undertaking. Similarly, under section 64(1) of the Local Government Act, 1993 (Act 462), it is mandatory to obtain building permit from the District Planning Authority prior to the construction of the mast. However, the defendant failed to obtain the building permit and Environmental Assessment permit prior to the erection of the mast.

 

Counsel contended that the defendant had no permit, certificate or licence from both the Radiation Protection Board and National Fire Service as required by law. In the view of counsel for the plaintiff, the failure of the defendant to procure the requisite permits as prescribed by law which is a condition precedent for the validity of the said undertaking rendered the installation of the mast and base station null and void. Counsel cited Re Appau (deceased) (1993-94) (G.L.R. 146-159) and Amartei vrs. S.I.C. (1992) 2 G.L.R. 86 at 89 to support his stand.

 

To these submissions, counsel for the defendant replied by saying that it applied for permit for development sites sometime in September 2008 before it commenced construction. He however conceded that it commenced construction before the sites were finally approved and permits issued. Counsel argued that per Exhibit 6 from the Tema Municipal Assembly (TMA), the defendant is informed that all but one of its sites have been approved with the subject site among the approved ones. He conceded the commencement of construction before approval but alleged that applied sanctions in the form of fines were duly paid by the defendant.

 

Counsel submits that upon the payment of the fees the TMA was to issue the necessary permits as a matter of right as approval had already been communicated to the defendant. He contended that if the TMA believed that the defendant had contravened the law it has a whole armada of sanctions which it can apply against the defendant including the removal of the offending object. Counsel concluded that the application of sanctions lie in the discretion of the Assembly as the word “may” is used in relation to the sanctions under section 64(5) of Act 462.

 

Turning to the Fire Certificate, counsel for the defendant claimed that the Dw1 testified that an application was made for fire certificate for the Okpoigonno site and paid all necessary fees. This is evidenced by Exhibits 7, 7^A and 7^B (at pages 627-629 of the ROA). According to the defendant, the application was accepted and the Regional Fire Service issued a fire permit, Exhibit 7.

 

In deciding whether a fire permit or certificate was issued to the defendant, a recourse must first be made on the Record of Appeal (ROA). By paragraph 6 of Exhibit 7 it is stated that:

“Permit or clearance (approval in principle) be granted by the appropriate agency to proceed with the project subject to compliance with what is stated in the protection proposal and this report” (Emphasis mine).

 

My understanding of paragraph 6 of Exhibit 7 is that a permit was granted to the defendant to proceed with the project subject to some conditionalities before a fire certificate is issued. The result is that the defendant cannot be said to have violated the law or constructed the mast without a fire permit.

 

In any case, paragraph 4 of Exhibit 7 spelt out the condition precedent to the issuance of fire certificate. It reads: “A fire certificate will be issued by the Fire Safety Department when it is satisfied with the installation and functioning of the fire protection facilities stated in the proposal report …after final inspection has been conducted on the premises.”

 

A cursory glance of paragraph 4 of Exhibit 7 shows that a duty was cast on the Fire Service to ensure that the installation was done according to plan before the Fire Certificate is issued. But before the Fire Service could conduct the final inspection of the site to ensure that the installation was done in accordance with the approved plan, it issued Exhibit P stating that, per its record a fire certificate had not been issued to the defendant. Exhibit P is a response to plaintiff’s letter to the Fire Service. I must say that it is the duty of the Ghana National Fire Service to do its checks and issue a fire certificate to the defendant. The defendant cannot and must not be punished for the default of the Ghana National Fire Service.

 

Next to consider is the Radiation Certificate. The Dw2 in his evidence stated categorically that the defendant did not have a compliance certificate. The witness explained that per the 2010 Regulations– Exhibit 16, a compliance report rather is issued upon the physical measurements being taken at the stage where the EPA is due to renew the operator’s environmental permit. The Dw2 also stated that they do give pre-radiation installation permits. However, the defendant was not issued with one because at the time of the defendant’s installation it was not a requirement. Consequently, I find that the information in Exhibit J (page 579 of the ROA) is correct as the defendant could not have been issued with a certificate of compliance at that time.

 

I must hasten to add that the defendant having caused the Radiation Protection Board to undertake measurements and submit a Radiation report after operation of the mast, it is within the confines of the law and has done no wrong in respect of its radiation compliance.

 

NUISANCE

The last segment of the “omnibus ground” of appeal is nuisance. This appears to be the main ground for the appeal herein. Under this ground, the plaintiff claimed that the electromagnetic waves, pollution and vibrations coming from the defendant’s activity (mast and base station at Okpoigonno Spintex road) was causing not only inconvenience to the health or safety of the public but also injury to their property and diminution in property values due to the close proximity of their property to the activity of the defendant’s company. The plaintiff lamented that he has suffered personal injury from the interference of the defendant’s activity with his private property which invariable denied him the comfort and enjoyment of staying in his house for that long.

 

NUISANCE ACTIONS

Before going into the merits of the above issue, I intend discussing briefly nuisance actions. Nuisance is the most frequent pled common law tort action in environmental litigation. Nuisance law traditionally protected the right of landowner to use and enjoy property. This is a broad interest that can be violated without direct physical invasion. Nuisance actions come in two forms: Public and Private.

 

Under both Private and Public nuisance law, the plaintiff must prove that the defendant’s activity unreasonably interfered with the use or enjoyment of a protected interest and caused the plaintiff “substantial” harm. An activity that affects the physical environmental conditions of land usually will meet the substantial harm requirement.

 

The court determines whether an activity is unreasonable by balancing the social utility of the activities against the harm they create. The court considers the benefits and damages that each party will gain if the offending or polluting activity is terminated. Other factors the court will consider are the local conditions, the right of the plaintiff to use the protected interest, and whether the defendant could have prevented the activity that caused the harm.

 

PRIVATE NUISANCE

Generally, one is subject to liability for a private nuisance, if but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

 

“(a) intentional or unreasonable, or unintentional and otherwise actionable under the rules controlling liability for negligence or reckless conduct or abnormally dangerous conditions or activities.”

 

In Miller vrs. Jackson (1877) Q.B. 966, Lord Denning M.R. observed that:

“a private nuisance is committed when an owner or occupier of land uses his land to the detriment of his neighbor.”

 

Again, Atkinson J. in Spicer vrs. Smee (1946) 1 All E.R. 489, pointed out that:

“a private nuisance arises out of a state of things on one man’s property whereby his neighbour’s property is exposed to danger.”

 

It is trite learning that complainants have used private nuisance actions to gain individual compensation and force polluters to discontinue interference with their physical private “property” as well as with their comfort and enjoyment of their property. In Boomer vrs. Atlantic Cement Co. 257 N.E. 2d 870 (N.Y. 1970), the prior-in-time plaintiffs claimed that the dirt, smoke and vibrations coming from the defendant’s 1,544 acre, $45 million cement plant caused injury to their property. The property owners sought damages and an injunction to close the plant. The plant already employed the best pollution control technology. The Boomer court addressed the economic consequence of the injunction and the effect of the nuisance. The court weighed the economic effect of closing the plant, which paid half the town’s property taxes, against the harm to the individual plaintiff’s land, and concluded that the cement company could pay permanent damages in lieu of an injunction or closing. Essentially, the court’s decision in Atlantic case (supra) was that the company could continue its nuisance as long as it paid for property condemned or damaged thereby.

 

This case illustrates the limitation of private nuisance law to remedy pollution. Courts typically balance the equities and hardships. Private nuisance do not always outweigh the economic contribution of the polluting entity. In Weinberger vrs. Romero Barcello 456 U.S. 305 (1982), the court reversed the circuit court’s order of injunctive relief. For widespread pollution, public nuisance law might be more appropriate than private nuisance law.

 

PUBLIC NUISANCE

The question now is: What then is public nuisance law? In his celebrated book, Environmental Law (5^th ed. 2010) page 25, the learned author Steven Ferrey describing public nuisance law had this to say:

“Public nuisance law protects from interference a ‘right common to the general public’. Plaintiffs may bring a public nuisance action if there are damages interference, or inconvenience to the health or safety of the public. A state may assert a public nuisance. A state may assert a public nuisance action as an exercise of its police powers – the typical situation.”

 

On the issue of whether an individual or a private citizen can assert public nuisance or bring a public nuisance action, the learned author, Professor Steven Ferrey stated at the same page 25 as follows:

“A private citizen may bring a public nuisance action only if he or she can show that he or she has suffered from a harm that can be distinguished from that suffered by the members of the general public. This so-called ‘special injury rule’ has been interpreted to require that the individual injury must be distinct from the environmental injury to all persons in the area, in order for the individual to be granted standing to bring a public nuisance action”.

 

Professor Ferrey concluded at the same page that:

 

“The individual private injury must be qualitatively different, not just quantitatively different, from the public injury. Some courts have held that this standard can be satisfied by personal injury to ‘one’s health’, as opposed to property damage” (Emphasis mine).

 

In the well-known W.R. Grace case in Woburn, Massachusetts (popularized in J. Harr, A Civil Action), Plaintiffs alleged that contamination of their ground water caused specific fatal illnesses. The Court in Anderson v. W.R. Grace & Co. 628 F. Supp. 1219 (D. Mass. 1986), held that this constituted a special injury to public water supply to ground a public nuisance claim. If proven, compensation could include value for physical injury, emotional distress related to the physical injury, and diminution in property values.

 

Applying the above principle of law to the instant case, the critical issue to be considered is whether or not the plaintiff was able to lead sufficient and cogent evidence in proof of his claim that the defendant’s activity unreasonably interfered with the use or enjoyment of his private property and cause him substantial harm.

 

Addressing the issue of nuisance, the learned trial judge meticulously considered the evidence of the parties and their witnesses and delivered himself at page 533 of the record as follows:

“On the aggregate of the evidence led, I hold that the plaintiff has failed to prove that the base station at Okpoigonno Spintex road, emits electromagnetic waves, which are harmful to human beings. Plaintiff also failed to prove noise pollution, because the evidence led by P.W.I J.A. Kwakye, support the assertion of the defence, that the base station does not produce noise which (as it were to decibels) are harmful to human beings. Plaintiff led absolutely not even an iota of evidence in support of how the location of the base-station has devalued his house. Consequently, he has failed to prove issues 1, 2 and 3 dealing with nuisance.”

 

I could not agree more with that view. In the first place, the above positive findings by the trial judge were amply supported by the evidence on record. Secondly, the plaintiff who bears the initial burden of proof relied basically on unvalidated scientific evidence or knowledge culled from internet which has no probative value to support his claim.

 

In his attempt to prove that he has suffered personal injury and damage to his private property from the interference of the defendant’s activity which was posing a health hazard, the plaintiff relied heavily on Exhibit D (the 2006 Guidelines for the Installation and Operation of Communication Mast in Ghana), which was inconsistent and contradictory to the case of the plaintiff herein.

 

Next, the plaintiff tendered Exhibits K and K1 which are articles culled from the internet by persons claiming to be experts in the field to support his claim that antennas have adverse health effects.

 

However, Exhibit D, paragraph5.3 recorded at page 559 of the record of appeal reads: “Telecommunication base stations use and transmit electromagnetic waves. There are some public concerns that such waves may have adverse effects on health. It does not say there is scientific evidence that electromagnetic waves from antennas have an adverse on health. The balance of evidence from various studies indicate there is no general risk to the health of people living close to base stations” (Emphasis mine).

 

The effect of the above quotation tendered in evidence by the plaintiff, contains the seed of its own destruction. Suffice it to say, the evidence of Dw2, an expert in the field of electromagnetic waves who works with the Radiation Protection Institution of the Ghana Atomic Energy Commission, put to rest the issue whether or not the radiation emitted from electromagnetic waves including antennas are harmful to human beings.

 

Dw2 Dr. Amoako in his evidence explained how antennas work. He tendered a report on the Spintex Okpoigonno site as Exhibits 17 and 18 (see pages 722-738 of the record) and stated that from the report, the cell site was well within the limit set by the Intentional Commission on Non-Ionizing Radiation Protection (I.C.N.I.R.P.) and also adopted by the Republic of Ghana. He stated unequivocally that the emissions from the electromagnetic waves posed no adverse effect on individuals and the environment where it is located.

 

It is pertinent to note that the plaintiff in his pleadings and evidence did not disclose which of the two nuisance actions (private or public) he was coming. Be that as it may, the plaintiff did not lead any evidence to show how the defendant’s activity (mast and base station) unreasonably interfered with the use or enjoyment of his private property and caused damage or substantial harm to him. Neither was he able to show that he has suffered harm from the defendant’s activity that was distinct from that suffered by members of the general public in the area under the “special injury rule” as required under public nuisance action.

 

Looking down the judgment, the process by which the learned trial judge came to his conclusion on the issues before him, left a great impression on my mind that he did what the law required of him having regard to the nature of the case before him. The judgment of the learned trial judge did not contain a perverse finding of fact against the appellants. He is not shown to have misunderstood the evidence or misdirected himself on the law as far as the issues in the case are concerned.

 

On the contrary, I think that the trial judge adequately dealt with the issues raised in the appellant’s appeal and came to the right conclusion on both the facts and the law, having regard to the admitted evidence.

 

In the case of Boateng and Others vrs. Boateng (1987-88) 2 G.L.R. 81 C.A; this court stated rightly the legal position that:

“Where the appellant contends that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that that was so.”

 

In the instant case, I am of the opinion that the plaintiff has failed to discharge the burden and as in the Boateng case, the evidence on record as well as submission of counsel shows that the findings of fact made by the trial court in respect of the plaintiff’s claim were amply supported by the evidence on record. There is therefore no basis for interfering with the trial court’s finding against the plaintiff. I find no merit whatsoever in the plaintiff’s appeal and the same is accordingly dismissed.