IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(GENERAL JURISDICTION 1),
ACCRA - A.D 2019
MRS PATRICIA BANNERMAN AND DR. ELIZABETH MASOPEH - (Plaintiffs)
INTERNATIONAL CENTRAL GOSPEL CHURCH, CROSS ROAD COMMUNITY CHURCH MINISTRIES AND THE MUNICIPAL CHIEF EXECUTIVE.- (Defendants)
DATE: 21ST JANUARY, 2019
SUIT NO: AP 56/2014
JUDGES: HER LADYSHIP JUSTICE NOVISI AFUA ARYENE (MRS.)
MRS. N.Y. ACHEAMPONG FOR PLAINTIFF
JOSEPH DZAKPASU FOR 1ST DEFENDANT
KWAKYE DUAH FOR BRENYA OKYERE 2ND DEFENDANT
Plaintiffs lived in a quiet and serene environment at Osu until commercialization and its associated noise made it unbearable for them to continue to live there. Between 2002 and 2004, they relocated to Haatso which was quieter and more peaceful. 1st plaintiff's house shares boundary with two plots of land belonging to one Mr. Mends who built a two storey building on one plot and a single storey building on the other. 2nd plaintiff's house is directly opposite the two storey building. Subsequently, defendants acquired the two properties from Mr. Mends at Haatso. 1st plaintiff averred that sometime in 2004 she became aware of activities of 2nd defendant on the property. The activities which included fellowship meetings and singing of hymns did not create a nuisance and was not a source of worry or concern to her. They continued to enjoy peace and quiet until sometime in 2005 when 1st defendant purchased Mr. Mends' other property for Church activities. That was the beginning of their woes. 1st defendant's activities include loud singing, clapping and drumming accompanied by electronic musical instruments and loud prayers both day and night especially from Fridays to Sundays. Plaintiffs further contend that the congregants littered the grounds and blocked the entrance of their houses with their cars.
1st plaintiff averred that the nuisance prevented her baby triplet grandchildren on sleeping, and that she was compelled to go to 1st defendant's premises one man her night gown to protest against the noise. But 1st defendant's members rather booed at her and called her names. Subsequently, 2nd defendant also joined in the excessive noise making, compelling plaintiffs to report the nuisance to the 3rd defendant, the Municipal Chief Executive, Abokobi. Although 3rd defendant directed an officer to write to 1st defendant, the latter failed to comply with the directive and the Assembly prosecuted two pastors of the 1st defendant. Despite the pendency of the suit, 1st defendant demolished the two storey building on the land and commenced construction of a church auditorium. 1st plaintiff contended that the construction works did not only add to the noise level, but defendant's workers looked over her property, posing a security threat to her and her household.
Despite the criminal proceedings, and in blatant disregard of his statutory duty to ensure peace and tranquility in the first class residential area, 3rd defendant proceeded to grant 1st defendant permit to build the church auditorium. And that 1st defendant built feverishly both night and day and the noise level created by the building activities forced her out of her house during the day, staying with friends and relatives until 10pm each day to maintain her sanity. And that defendants' activities are interfering with her Constitutional right to peaceful enjoyment of their property. Plaintiffs claim the following reliefs
I. An order to the 3rd defendant to perform his statutory duty to pull down or cause to pull down the auditorium built in the course of the case in court and to abate the nuisance of:
a. Noise to both plaintiffs.
b. Security threat resulting from people overlooking the home of 1st plaintiff.
c. Littering of rubbish in front of and blockage of the entrance of 2nd plaintiff.
II. An order to 1st and 2nd defendants to stop their church activities in the 1st class residential area of Haatso.
III. Perpetual injunction against the 1st and 2nd defendants, their agents, assigns and anyone who derives title through them from engaging in any activity on the two plots of Mr. Mends adjoining to the house of 1st plaintiff likely to interfere with the peaceful enjoyment of the properties of the neighbors especially the plaintiffs herein.
IV. Punitive general damages against the 1st and 2nd defendants for the indescribable pain and suffering, sleeplessness, mental agony, financial loss www.com and possible latter health problems emanating from such nuisance as have been identified by health experts.
V. Punitive general damages against the 3rd defendant for his failure to perform his statutory duties even after having been prompted to do so by plaintiffs by their report to him as established by law.
In her statement of defence filed on 4th of June 2015, 1st defendant denied plaintiff's claim and averred in paragraph 8 of the statement of defence that she had taken several steps to abate the nuisance complained of and put plaintiff to strict proof of the alleged nuisance. Defendant averred that even if there was any nuisance, same has since been abated by the installation of sound proof devices and the acquisition of an adjoining property for use as a car park. 1st defendant admitted that there were several correspondences with 3rd defendant to ensure compliance with the laws and regulations. And that she has applied and obtained the necessary permit to enable her operate as a Worship Center on the land and that she was not in breach of any law or regulation. Consequently she was acquitted and discharged by the district court Madina. 2nd defendant also denied the claim and averred that she started her church activities in 2003 with singing of hymns without noise making instruments as alluded to by plaintiff in paragraph 7 of their statement of claim and that that situation has not changed. 2nd defendant denied the allegation that 3rd defendant was compelled to write to her and averred that she did not cause any nuisance to the neighbors. And neither was she invited to the GEMA or prosecuted for noise making.
In further denial of the claim, 2nd defendant averred that before commencing her activities in the area, they held meetings with plaintiffs and other residents and assured them that 2nd defendant would not cause any nuisance. In keeping with this assurance, and defendant uses controlled public address systems for Sunday worship services. Her weekly Friday evening services end at 7.30pm. Neither does 2nd defendant hold All Night Services to disturb the peace of owners of neighboring properties. In reply 1st plaintiff averred that a report by Environmental Protection Agency shows that the noise level of 1st defendant's activities was above what was allowed in residential areas. And that contrary to building regulations, 1st defendant's building is very close to her wall. With respect to 2nd defendant, plaintiffs in their Reply averred that to void being drowned by the noise made by 1st defendant, 2nd defendant whose activities were hitherto tolerable, increased her noise level.
The following issues were set down for trial:
I. Whether or not Haatso having been identified by 3rd defendant as a first class residential area for which residents were made to pay very high property rates made him responsible to protect their constitutional rights for quiet enjoyment of their properties.
II. Whether or not 1st and 2nd defendants are in breach of the environmental and developmental laws.
III. Whether or not 1stdefendants had a permit to construct the worship center.
IV. Whether or not 1st and 2nd defendants operate in accordance with the Environmental Agency's rules relating to noise pollution.
3rd defendant failed to enter appearance to the suit and on an application filed on 31st March 2015, this court granted judgment in default of appearance against 3rd defendant on the 4th of May 2015.
The instant action turns on whether or not the activities of 1st and 2nd defendants constitute nuisance. Private nuisance is described at page 646 of Winfield & Jolowicz on Tort, 17th Edition as unlawful interference with a person's use or enjoyment of land or some right over, or in connection with it. The aw of private nuisance represents an attempt to preserve a balance between two conflicting interests; hat of one occupier in using his land as he thinks fit, and that of his neighbor to quiet enjoyment of his and. Nuisance is about the law of give and take and the court is concerned with balancing the respective rights of the two parties and determining the permissible extent of the interference.
Reasonableness lies at the core of the law of nuisance and the nature and quality of the defendant's conduct is a factor of great importance in determining liability. It is only where the use of the property is unreasonable that the conduct is considered unlawful. Reasonableness has been held to be what is legally right between the parties, taking into account all the circumstances of the case. In Sedleigh Denfield v O'Callaghan [1940) AC 880 at 903 it was held that the test of liability is what is reasonable in accordance with common and usual needs of mankind in a society or a particular area. What is considered excessive within that locality would generally be actionable.
If on balancing the competing interests of the parties the court considers that the interference is excessive by any standards, then the fact that the defendant has taken all reasonable care and reduced it to the minimum provides no defence; the irreducible minimum is itself the nuisance.
In making a determination, the court would consider the general benefit to the community of the defendant's activity complained of. However, where evidence shows that the activity complained of, is causing serious damage to the claimant's enjoyment of his property, the court would not accept the submission that the claimant should put up with the harm because it is beneficial to the community as a whole.
Where the interference is with respect to the use, comfort and enjoyment of the land, the court would take the location of the premises of the parties into consideration in determining whether the defendant's activity is unreasonable. In Aidoo vrs Adjei & Others (1976] 1 GLR 431, the Court of Appeal held that the operation of a chop bar in a bamboo structure on a portion of land where a person ad his residential building constituted nuisance. In determining what constitutes nuisance, the court would also take into consideration all the circumstances of the particular case, this includes the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it is done maliciously or in the reasonable exercise of rights and the effect of the commission, that is whether it is transitory or permanent, occasional or continuous.
The learned authors of Winfield & Jolowicz on Tort, noted further that a major factor in the nature of the locality will be the planning process of the locality. It has been held that the grant of planning permission does not directly legalize an activity which amounts to a nuisance. In Gillingham Borough Council v Medway (Chatham) Dock Co Itd  QB 343, neighbors complained at the development of a new commercial port on the site of a disused naval dockyard. This resulted in heavy vehicular traffic at night which seriously affected the comfort of the local residents. It was held that although a planning permit could not authorize a nuisance, it could change the character of the neighborhood. In that case it was held that the grant of the permit altered the character of the area preventing the locals rom claiming in private nuisance. In his judgment, Buckley J held that the question of nuisance would all to be decided by reference to that character as changed by the permit and not as it was previously.
Exhibits C series and E series show that prior to commencing the instant action, plaintiffs had complained to 1st defendant about the noise level from her church activities. When the noise did not bate, they reported the nuisance to the 3rd defendant in his capacity as head of the Ga East Municipal Assembly (GEMA), and 1st defendant was invited to meetings to discuss the issue. Exhibit F shows that in 2011, the Assembly charged two pastors of 1st defendant before the Madina District Court for siting a church within a residential area without permit and generating excessive noise nuisance contrary to section 287 of Act 29.
In a ruling dated May 2012, the Magistrate upheld a submission of no case and ruled that the prosecution failed to prove the essential elements of the charges leveled against the accused persons. The court found that 1st defendant had applied to the District Planning Authority for permit seven months before they were charged. It also held that since the institution mandated by law to measure noise level is the EPA, the absence of EPA report that the noise was beyond acceptable level was fatal to the prosecution's case. She ruled that the accused had no case to answer and they were acquitted and discharged. In her testimony before this court, 1st plaintiff who also testified on behalf of 2nd plaintiff, supported her testimony with exhibits A to N series. Exhibit C is a letter addressed to the General overseer International Central Gospel Church dated 18th of June 2009 complaining about the noise pollution by 1st defendant. Paragraphs 2, 3, 4 and 5 of 1st defendant's reply to this letter dated 21st of une 2009, in evidence as exhibit C1, is instructive and is reproduced below.
“The leadership of the church and our General Overseer in particular is committed to ensuring that our church is socially responsible. On our part, we have put in place a committee to properly look into your concerns and address them.
First, we wish to assure you that these noises (especially Friday all-night services and after Sunday church activities) would be minimized. We have informed the choir not to use musical instruments and public address systems during practice. In addition, the completed building is to be sound-proof to avoid any disturbance to residents in the area.
Second, we regret the inconvenience created by the debris from the construction falling on your property. We would seriously discuss this with the workers and ensure that measures are put in place to prevent this. On the issue of parking space, we are in the process of acquiring the adjoining property which will be used as a parking space.
Thirdly, I sincerely apologize on behalf of members of the congregation and the construction workers when you initially attempt to bring these concerns to my attention. I believe we could have amicably discussed the matter to avoid it getting to this stage where we should be exchanging letters on this matter. In that respect, I will personally want to meet with you at your earliest convenience to discuss the concerns and ways of addressing them.”
These assurances notwithstanding, the nuisance persisted, compelling plaintiffs to report the nuisance to the 3rd defendant. Several meetings were held to discuss the issue. It was when 1st defendant failed to comply with the directives of the Assembly that some of its leaders were charged before the District Court. In her ruling, the Magistrate referred to defendant's letter to the Ga East Metropolitan Assembly (GEMA) dated 5th of May 2011, applying for permit to use the property as a worship center. It is clear from this letter that 1st defendant started using the premises for church services before the permit was granted. It is significant to note that 1s' defendant admitted in paragraph 8 of her witness statement that sometime in 2005, plaintiffs complained about the nuisance arising from the activities of the church. Following the complaints, the church visited residents to discuss ways of living peacefully in the community. Indeed letters of consent issued by 1st defendant, to the residents, dated August 2009, in evidence as exhibit D, shows that prior to her application to the GEMA to use the property as a worship center, 1st defendant was aware of the noise pollution and sought to get the residents to sign a document.
In that document she sought to assure the residents that the noise would be abated on completion of the auditorium which would be fitted with sound proof devices.
It is my judgment that exhibits C series and exhibit D sufficiently demonstrate the nuisance complained of. By her own showing as evidenced by paragraphs 16 to 18 of the witness statement of her representative, the noise continued from 2005 when plaintiffs complained until the completion of the auditorium in 2013. I have given careful thought to exhibit 4 series being photographs of 1st defendant's completed and furnished auditorium, purportedly fitted with sound proof devices and also the acquisition of a car park, and rule that the noise may have abated but that does not absolve 1st defendant from liability. Sedleigh Denfield v O'Callaghan (supra) refers.
I am also fortified in this conclusion by the decision in CFC Construction Company and Others v Accra City Council (1964) GLR, page 496. In that case, the plaintiff brought an action against the defendant for damages for nuisance and interim injunction to restrain defendant from dumping refuse near their property. Defendant denied the allegation and argued that as at the time of the trial, the stench had ceased and that there was only a temporary interference with plaintiff's comfort in the past and same should not be actionable. It was held that interference, whether temporary or not with a person's enjoyment, tranquility, liberty, conveniences or comfort (provided the degree of interference was sufficiently serious) constitutes an actionable nuisance.
Following the acquittal of members of 1st defendant by the Madina District court in May 2nd 2012, plaintiffs per exhibit K, caused their solicitors to lodge a complaint with the Environmental Protection Agency, by a letter dated 24th of January 2013. In response, EPA assessed the noise level from the service at 1st defendant and by a letter dated 11th of June 2013, in evidence as exhibit L, EPA found that he noise level taken from the house of 1st plaintiff has a minimum reading of 76 dB (A) and a maximum reading of 86 dB (A). They indicated that EPA daytime ambient permissible noise level for residential areas was 55 dB (A). On the evidence, I rule that the noise was clearly above the permissible noise level for a residential area where the church was sited. It is the case of plaintiffs that the noise level of 2nd defendant was tolerable until 1st defendant started using loud instruments when 2nd defendant escalated her noise level to match that of 1st defendant. It has been submitted on behalf of and defendant that no evidence was presented to the court in support of the alleged nuisance. Relying on Boakye v Asamoah (1974] 1 GLR 38, counsel for 2nd defendant submitted in his written address hat having denied the alleged nuisance, the onus was on plaintiff to produce evidence of facts and circumstances from which the court can conclude that the alleged nuisance is true. And that 1st plaintiff ailed to discharge the burden but merely repeated the averment on oath.
I do not agree with this submission because it is in evidence that the church activities of both defendants included singing, clapping, use of electronic musical instruments and loud-speakers. These activities took place each time Church was in session. It is not in dispute that when and defendant commenced her activities in the area, they were only singing hymns and studying the Bible. She does not deny the fact that subsequently, her membership increased and that her activities now include drumming, clapping and use of musical instruments and loud speakers.
In my judgment, in the absence of sound proof device, and considering the proximity of plaintiffs' properties, as per exhibit L, the use of electronic musical instruments, clapping and singing and use of oud speakers, establish a prima facie case of nuisance. The onus shifted to 2nd defendant to produce evidence in rebuttal of the alleged nuisance, a duty she failed to discharge.
It is also my judgment that it is more probable than not that in the absence of a car park, 2nd defendant's congregants, exceeding 250 members, are likely to park their cars along the street. Although 1st defendant acquired the adjacent plot for a car park, the evidence shows that like 2nd defendant, her members continued to park their cars along the road. No evidence was however presented to the court hat defendants? congregation members block the entrance to plaintiffs' homes with their cars or that hey litter the vicinity of plaintiffs' houses. will now consider the issue whether or not 1st and 2nd defendants are in breach of the environmental and developmental laws as alleged. Plaintiff tendered into evidence exhibit L and contended that the activities of defendant was in breach of the environmental laws of the country. 1st defendant was represented at the trial by Kwame Nyante who tendered in evidence EPA permit as exhibit 5 and told the court that the church had permit for her activities. It is significant to note that under paragraph 6.5 of the conditions of the permit, it is provided that the church will comply with EPA permissible noise levels guidelines as contained in Article C, 1 that is of 65 dB (A) in the day time and 60 dB (A) at night. And comply with the existing GEMA bylaws on noise and sanitation.
The exhibit also provided in paragraph 6.10 that an Environmental Certificate must be obtained within 24 months (i.e. Before August 15, 2012) of satisfactory performance and compliance with relevant permit conditions, in accordance with Regulation 22 of LI. 1652. Interestingly 1st defendant who averred that she had since complied with the rules and regulations failed to produce the certificate required under clause 6.10 of the permit in proof of her compliance with the conditions of the permit. No evidence was also provided in satisfaction of Regulation 25 of LI 1652. The Regulation provides that a person granted environmental permit under these regulations, shall submit an annual environmental report in respect of his undertaking twelve months from the date of commencement of operation and every twelve months thereafter to the Agency.
Regulation 2 of the Environmental Assessment Regulation, 1999 (LI 1652) prohibits any person from commencing any undertaking which in the opinion of the Agency has or is likely to have adverse effect on the environment or public health unless prior to the commencement, the undertaking has been registered and an environmental permit issued in respect of the undertaking. In my view, noise from a worship center located in a residential area is likely to adversely affect the quiet enjoyment of other property owners in the locality therefore the Regulation ought to have been complied with.
With respect to compliance with building regulations, it is worth noting that 1st defendant testified per paragraph 5 of her supplementary witness statement (filed with leave of this court), that it was not until ate 2011/2012 that she applied for rezoning of her plot for use as a church. It can be inferred that until he rezoning was granted, the area per the designation of GEMA, was a first class residential area. See he property rate bill of the Assembly attached as exhibit B1 to the witness statement of plaintiffs.
In the instant case, exhibit ICGC 1 attached to the supplementary witness statement of 1st defendant's representative, shows that the rezoning of the plot on which the 1st defendant is located was granted on 25th of January 2012. The exhibit shows that the rezoning was done after the fact. In other words, contrary to the zoned purpose of the area as a residential area, 1st defendant used the property as a worship center before obtaining permit to use it as such. It is the case of the plaintiffs that it was the duty of the 3rd defendant to ensure that residents of the designated first class area enjoyed peace and quiet and that rezoning the area without notice to the residents was a breach of his statutory duty. My research supports this submission by plaintiff.
The position of the law, as I found in my research on the topic, is that the zoning of a piece of land determines its use. Accordingly where the owner of a property wants to use the property in a way that is not permitted by the zoning of his property, he must apply for zoning variance or special permit to use the land for that purpose. An applicant must demonstrate to the authorities that the intended use will not adversely affect the neighbors. Because the requested use may affect surrounding property owners, it must be publicized by the authorities with the view to taking on board, concerns of other property owners in the locality.
A use permit such as what 1st defendant was granted, would allow the land owner to use the land in a way not normally permitted under the zoning. Such permits typically impose a number of conditions on the allowed use. Regrettably, exhibit ICGC 1 does not specify any conditions for the use of the rezoned property. In the circumstances, since defendants are located within a residential area so designated, I rule that the conditions under LI 1652 apply and must be complied with.
Whether or not 1s' defendants had a permit to construct the worship center. Referring to Regulation 8(2) of the National Building Regulation 1996, (LI 1630,) counsel for 19 defendant submitted that she cannot be faulted for commencing her building project before the permit was granted. I have read the regulation and to my mind it does not address the issue of rezoning of the area. The Regulation provides that an applicant for building permit (note not rezoning permit) not informed of the grant or refusal of the application may after the expiry of three months commence development on the basis that the application is acceptable to the District Planning Authority.
It is my judgment that with respect to the building project, 1st defendant is authorized under Regulation 8(2) to proceed at the expiry of three months. It is my respectful opinion that where as in the instant case, a property owner applies for rezoning of his property for a purpose other than what it was one for, he cannot proceed to use the property without the express authorization of the District planning Officer, for reasons hereinbefore discussed in this judgment.
No evidence was presented to the court by the 2nd defendant in rebuttal of plaintiff's assertion that she sed her premises for worship without authorization. It is for this reason that I rule that 1st and 2nd defendants were in breach of the building rules and regulations when they proceeded to use the property situate in a residential area for worship without authorization. Evidence of the subsequent permit does not absolve the 1st defendant of liability. However having obtained permit to use the plot or worship, (albeit after using the building as a worship center for years without one), I shall not grant plaintiffs reliefs (a) and (b).
am fortified in this decision by the English case of Gillingham Borough Council v Medway Chatham) Dock Co Itd (supra) where it was held that the permit altered the character of the area and prevented the residents from claiming in private nuisance. The court took the view that although a planning permit could not authorize a nuisance, it could change the character of the neighborhood. It is my respectful opinion that having rezoned the area for worship, the character of the area has changed.
With respect to 3rd defendant, it is my respectful view that while rezoning of a residential area for use as a worship center or for any other activity, was within his power, same must be done within the law, taking into consideration the rights and interests of other property owners and residents.
At page 650 of Winfield and Jolowicz on Tort, the authors stated that in assessing whether matters causing personal discomfort are actionable, the court would take into consideration the nature of the locality
It is instructive to note that because interference which may not be permissible in one area, may be in another area, and in compliance with building planning regulations, the Assembly has zoned out a place for cluster of churches in the Kwabenya area. It is also of interest to mention that for the same reasons, the authorities of the University of Ghana have zoned out a place where a cluster of churches are located both on the University Campus and the Staff Village, Legon. In my judgment, residents located within the vicinity of the cluster of churches as zoned by the Assembly, are prevented from claiming in private nuisance. The area having been zoned for church activities, persons acquiring properties in the area know or ought to know what to expect.
In the circumstances, I shall award punitive damages in the sum of Ghc20,000 against the 3rd defendant for capricious use of discretion and for reckless disregard of the interests and rights of plaintiffs to quiet enjoyment of their properties.
I shall also award damages for nuisance against the 1st and 2nd defendants in the sum of Ghc20,000 each. 1st and 2nd Defendants are hereby ordered to comply with Regulation 25 of the EPA Environmental Assessment Regulation 1999, LI 1652 within 30 days of this order, and thereafter by the end of the first quarter of each year. They are further ordered to comply with clause 6.5 of exhibit 5 within 30 days of this Order. A copy of the Annual Environmental Report and Environmental Certificate referred to in clauses 6.8 and 6.10 of exhibit 5 shall also be filed in this court by both defendants within 30 days of this order and copied to plaintiffs. Costs of GH¢10,000 against each defendant.
NOVISI AFUA ARYENE (MRS.)
(JUSTICE OF THE HIGH COURT)