ARTHUR VRS HOUSE OF HOPE CHURCH (A1/ 35/2023) [2024] GHADC 358 (25 January 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON THURSDAY 25TH JANUARY 2024 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. SUIT NO: A1/ 35/2023 ALFRED ARTHUR (suing for himself and on behalf of his neighbours Ibrahim Labaran and Issahaku Alefa) - PLAINTIFF VRS HOUSE OF HOPE CHURCH - DEFENDANT (Per its pastor Sofo Kwasi) JUDGMENT 1. INTRODUCTION 1.1. In this suit which the Court tried unsuccessfully to have settled amicably, I am led by the spirit of justice to commence this judgment with a verse from the good book, that is Matthew 5:25 English Standard Version of the Holy Bible which reads: “Come to terms quickly with your accuser while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison.” 1.2. This suit emanates from a claim which the court has deciphered from the processes filed by parties herein who acted pro se, without counsel, as a claim in private nuisance. Before commencing with a discussion of parties’ cases, I call to mind the statement of Archer J (as he then was), in C.F.C. Construction Company and Others v. Accra City Council [1964] GLR 496 which I propose to be guided by, which is this: Page 1 of 16 “The legal concept of nuisance is not capable of being defined with exactitude and hence textbook writers and judges aware of this impossibility, have consistently refrained from placing any precise meaning on the word in view of the fact that before the courts decide whether or not an action for nuisance is maintainable, the courts subject their thoughts to a variety of considerations and a balance of conflicting interests. The decided cases on nuisance are in abundance, but some of them seem to establish that any interference with one’s enjoyment, one’s tranquility, one’s personal liberty, convenience or comfort provided the degree of interference is sufficiently serious, constitutes an actionable nuisance.” 1.3. Kyei-Baffour J (as he then was) in George A. Sarpong v. Wisconsin University College and Others (2016) JELR 63887 (HC) agreeing on the absence of any set definition of the tort of nuisance relied on the definition in Bamford v. Turnley [1860] 3 B & S 62 that is "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". Plaintiff’s case 1.4. Plaintiff in this suit is a trader and a resident of house number XA 0293, Kyeremankuma-Kintampo who sued for himself and on behalf of his neighbours namely Labaran Ibrahim and Issahaku Alefa. His case is that he resides in a house on Plot numbered 27, Block 'D', Sector 1 which shares boundaries with Defendant church, as such very close to where his neighbours as mentioned reside. 1.5. His case is that the plot on which Defendant conducts its church activities was allocated for residential purposes only and not otherwise and that five years ago from the time of the filing of his statement of claim, sometime in the year 2018, he observed that Defendant had been occupying a wooden structure on said land Page 2 of 16 where the church activities are conducted. The church’s activities such as singing, praying, shouting, and playing of instruments being very loud and blowing directly to Plaintiff and his neighbours’ houses caused them grave “disturbances, discomfort and inconveniences”. 1.6. Plaintiff says that he and Labaran Ibrahim on behalf of other neighbours approached the leadership of the church through its pastor and intimated to them their discomfort from the church’s activities and pleaded for a decrease in intensity of the sounds, but it was not abated. 1.7. After several confrontations, Defendant informed its founder Noah, who came to them and in a meeting with Plaintiff and four of the church members on the issue, informed them that the land on which the church conducts its activities was the property of a woman, a member of the church, also present during the meeting. Noah stated that the church was temporarily worshipping at the place since they had not completed their church building on a land allocated to them by the Chief of Kyeremankuma-Kintamp0. Noah assured them that Defendant would not put up a church building for worship on the land and would move the church to a building under construction when same was completed. Noah represented to them that he would ensure the reduction of sounds so as not to disturb the neighbours. 1.8. Being comforted with Noah’s words, they allowed the church to worship on the land, but contrary to the assurances given, the church continued with unbearable noise, and it did not abate despite several confrontations. The matter was reported to the Assembly member of the area, known as Honourable Paul, who came to bear witness to same. Page 3 of 16 1.9. The Assembly member of the area met with leadership of Defendant through Sofo Prince on the issue without fruit as Defendant continued in its conduct. Sometime in May 2022, Defendant deposited three (3) trips of sand on the land which to Plaintiff indicated Defendant’s intention to build a church on the land, on which there was already a mission house. This was followed by the deposit of one trip of gravels sometime in April 2023. All attempts having proved futile in stopping Defendant’s conduct, Plaintiff sued claiming against Defendant per his writ of summons thus: “a. A declaration that Defendant’s church activities in the form of singing, praying, extreme shouting and intstrumental effects which is causing unbearable disturbances, discomfort and inconveniences to Plaintiff amount to nuisance. b. An order for perpetual injunction restraining Defendant, his agents, assigns, members and any person claiming through it from causing nuisance to the Plaintiff through its church activities. c. Any order(s) that this honourable court may deem fit.” Defendant’s case 1.10. Defendant represented by its head pastor in terms of Order 1 Rule 3(2) of the District Court (Civil Procedure) Rules 2009 (C.I. 59) departed from Plaintiff’s allegations of fact, as captured in Defendant’s pleadings that the plot of land on which the church is situate was duly allocated to the Church by the Municipal Assembly, endorsed by the Chief of Kyeremankuma, and that the church building had been on the disputed land since 2014, for nine years, thereby denying that Page 4 of 16 church activities were undertaken in a wooden structure. The land according to Defendant is the bona fide property of House of Hope Church. 1.11. Defendant’s case is that it has been moderate in its activities in order not to abuse the rights of its neighbours and also denied entirely any meeting between Plaintiff and Noah. Defendant says it has cohabited peacefully with its neighbours for over 9 years of church activities until recent inexplicable and untrue complaints of nuisance by Plaintiff. 1.12. Defendant states that in February 2022, Plaintiffs reported Defendant at the Kintampo North Municipal Environmental Health Department complaining that Defendant was creating nuisance at the neighbourhood, Defendants were invited and denied all allegations leveled, telling its side of the story. The office of the Environmental Health Department in a bid to resolve the matter amicably drafted a memorandum of understanding signed by Defendant’s Head pastor. After this, Defendant complied with its part of the Memorandum of understanding, installing soundproofing mechanism inside the chapel to reduce the noise from the chapel. 1.13. Defendant’s contention is that the area at which the chapel is located cannot be conclusively said to be demarcated exclusively for residential purposes being an old site with a cemetery, churches and mosque located there. On these facts, Defendant prays the court to dismiss Plaintiff’s suit as unmeritorious. 1.14. The primary issue raised on parties’ pleadings for determination in this suit is ‘whether Defendant’s activities on its land constitutes a nuisance to Plaintiff and his neighbours’. 2. PLAINTIFF’S BURDEN Page 5 of 16 2.1. As set out in Nat Lomo Mainoo v. Airtel Ghana Limited (2018) JELR 64626 (CA) a Plaintiff under both Private and Public nuisance law, must prove that the Defendant’s activity complained of in the suit unreasonably interfered with the use or enjoyment of a protected interest and caused the Plaintiff “substantial” harm. The Court’s position was that an activity that affects the physical environmental conditions of land usually will meet the substantial harm requirement. 2.2. Plaintiff herein if he is to succeed in his claims in this suit must establish the foregone to the requisite degree. That is to say, that the burden and standard of proof as it relates to the production of the right evidence that is sufficient and also persuasive must all be discharged, and Defendant having failed to raise any defence in the absence of any other lawful impediment, the Court may grant the appropriate remedy. 2.3. Again, Her Ladyship Mrs. Wood, as she then was, in Yeboah vrs. Amofa (1997- 1998) 1 GLR 674 at page 683 explained that in the light of sections 11(1) and (4) and 12 of NRCD 323 sufficient evidence is such particular evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude the probability of the existence rather than the non-existence of the fact. The sufficiency of evidence is a question of fact determinable on the peculiar facts of each case, “So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B”. When this is satisfied, the burden initially on Plaintiff is shifted unto Defendant as provided under Section 17 of NRCD 323. 2.4. In George A. Sarpong v. Wisconsin University College and Others (supra), Kyei Baffour J. with precision and concise erudition set out the hurdles Plaintiff must scale and what defences Defendant may employ in the following: Page 6 of 16 “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” Whether Defendant’s activities on its land constitutes a nuisance to Plaintiff and his neighbours 2.5. Plaintiff testified and called one witness. Plaintiff’s evidence-in-chief being in substance a repetition of his pleadings, I will not belabour its repetition. PW1 Honourable Paul Zindam, testified and corroborated Plaintiff’s case in all material respects. Particularly relevant to the issues in contention in this suit is his testimony that a report was made to him by Plaintiff concerning the noise from Defendant’s church after which he paid a visit to Sofo Prince, and an assurance was made by the latter to ensure the reduction of noise therefrom. He also testified that he had personally witnessed the noise emanating from the church which he described as “very high, intolerable and annoying” more than once. Page 7 of 16 2.6. According to PW1, Sofo Prince admitted to him that sometimes, it was even difficult to realize that they were producing such noise and promised to remedy it. All of PW1’s evidence that I have outlined so far, was not challenged by Defendant under cross-examination, neither did the Court receive any evidence at all to the contrary. Defendant is deemed to have admitted this. I am satisfied that this position I have adopted is correct even if I do not hold the strict rules of cross- examination against Defendant not represented by counsel. 2.7. In Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 Ansah JSC at page 890 relied on Tutu v Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, where Ollenu JA said this: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 2.8. Even if the evidence had been challenged or denied, it is not sufficient to simply deny an allegation without providing any evidence or explanation to support the denial. In Hilodjie v. George (2005-2006) SCGLR 974 at 995 Georgina Woode JSC (as she then was) stated as follows: “In any action, cause or matter, a party who disputes an issue does not simply rest the case on formal denials either made in examination-in- chief or ‘put’ or ‘suggested’ to an opponent under cross-examination. If the opponent does not admit those suggestions, then he or she is deemed to have succeeded in establishing a prima facie case on the disputed fact, and the evidentiary burden Page 8 of 16 shifts on to that party to prove contrary facts if he or she is desirous of avoiding a ruling against him or her on that issue.” 2.9. When the burden of proof shifted, and I find that it did, Defendant testified and called one witness. Defendant’s testimony was a repetition of pleadings as well. He only testified in addition that the musical instruments used by the church for its service had been stolen by some thieves. These had not been replaced and church service was done manually, so to him, the noise escaping from the church at present was insignificant. Defendant put in evidence a site plan, a memorandum of understanding and an allocation note as Exhibits 1, 2 and 3 respectively. Defendant essentially admitted severally under cross-examination that the church made noise. One such admission was made under cross-examination when he said this on the 7th day of December 2023 regarding the memorandum of understanding admitted in evidence as EXHIBIT 2: Q: Is my signature or thumbprint on the copy given to me indicating that I attended this meeting? A: For the signature side I cannot tell because I was not the one who drafted the letter. What I know is that the matter depended on us to reduce the noise since the case rests on us, so our agreement if what he needed. This is so that if we were unable to follow the terms he could base on it and do what he could if plaintiff and his people came back to the place. 2.10. It is instructive to note that in Exhibit 2 which Defendant signed, represented by Prince Essuman, identified in this suit as Pastor Sofo Prince, although the church was identified by a different name, these were the principal terms: Page 9 of 16 “The Environmental Health and Sanitation Unit of the Kintampo Municipal Assembly have herein instructed The House of Power Evangelical Ministry Church of house number XA0293 m Kyeremakuma to modernize their church building with sound proof materials to reduce the noise nuisance which was brought to Environmental Health and Sanitation Unit on 17th January 2022 by Hon Zindam Paul the Assemblyman of Kyeremakuma Electoral Area. Beside, Mr. Alfred Arthur Suing and Mr. Labaran Ibrahim neighbours of the affected area did follow up on the same issue which we promised them that the founder Apostle Doctor Noah Obeng pledged to go by Assembly rules and regulations by putting up sound proof materials to avoid noise nuisance in the near future. Additionally, the Municipal Works Department will be involve of pre and post of the church building to intensify the sound proof materials and building.” 2.11. This cannot in my view be seen any less than an admission of the noise and nuisance constituted by Defendant’s activities at the area. An admission as defined in the 7th edition of the Black’s Law Dictionary, is “a voluntary acknowledgment of the existence of facts relevant to an adversary’s case.” As held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, where a matter is admitted proof is dispensed with. In the case of in re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v. Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, the court explained this rule on admissions as follows: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” Page 10 of 16 2.12. DW1’s testimony, at least that part which relates to the issue in contention, is that being personally engaged in all church activities, she is aware that the church’s activities are moderate and peaceful in respect of noise and disturbances. She describes Plaintiff’s protests as being without solid grounds, since Defendant has taken steps toward peaceful co-existence with its neigbours by installing soundproofing, reducing the number of church days and conducting service manually. 2.13. Now I consider the matter of the installation of soundproofing of the church as alleged by Defendant if it should have any relevant bearing on this judgment, and I must say that the evidence on record is to my mind not sufficient to prove its existence. The law is that matters capable of proof must be proven, and I am of the view that some corroborative evidence apart from the oral repetition of pleadings on oath by Defendant and DW1, perhaps in the nature of pictorial evidence which is easy to present in light of prevailing technological advancement could have satisfied this want. I have also drawn my mind to the point of law in Faibi v State Hotels Corporation [1968] GLR 471 where it was held that “Where a party would not produce evidence which evidence is available and within his peculiar knowledge, it could be inferred in law that that evidence is against him". 2.14. In any case, by Defendant’s own Exhbit 2 the issue of Defendant church making noise is to my mind sufficiently established by the evidence on record. Concerning the discomfort that this noise would cause to Plaintiff and his neighbours, I think it was entirely foreseeable, so I must find Defendant liable. I find that Defendant’s use of its land on the property known as Plot No. 46 Block D Sector 1A Kintampo as a place of worship constitutes a nuisance to Plaintiff and his neighbours on behalf of whom he has sued. The noise will affect the physical conditions at the area and thereby cause substantial harm. Page 11 of 16 3. REMEDY 3.1. In determining the appropriate remedy to grant, I am guided by Hanna Assi (No 2) v Gihoc (No 2) [2007-2008] 1 SCGLR 16 where the Supreme Court held that the Courts have power to grant all reliefs that flow logically from the established claims of the party. This thinking was further explained by A. M. Dordzie JA (as she then was) in George Lamptey v. Meklloyds Co. Ltd and Theophilus Ohene Poku (2017) JELR 63977 (CA) in these words: “… I must say that case law in recent times has demonstrated that the courts have turned away from strict adherence to considering only reliefs endorsed on writs of Summons. The courts now look at the totality of the endorsement on the writ of summons, the pleadings and the evidence adduced before the court to grant the appropriate reliefs the circumstance of each case demands.” 3.2. In settling on the appropriate relief to grant in this suit, I have considered the fact that Defendant has not demonstrated to this court compliance with statutory requirements concerning the construction or operation of its place of worship. I have seen no evidence of the requisite permits, and as held in Gillingham Borough Council v. Medway (Chatham) Dock Co Ltd [1993] QB 343, that is not to say that these permits would authorize the nuisance, as held in Mrs Patricia Bannerman and Dr. Elizabeth Masopeh v. International Central Gospel Church, Cross Road Community Church Ministries and The Municipal Chief Executive. (2019) JELR 66298 (HC) 3.3. In the same spirit as Aryene J (as she then was) in Mrs Patricia Bannerman and Dr. Elizabeth Masopeh v. International Central Gospel Church, Cross Road Community Church Ministries and The Municipal Chief Executive. (supra) I take the view that Regulations 22 and 25 of the Environmental Assessment Regulations, 1999 (LI 1652) prohibits any person from commencing any Page 12 of 16 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, and requires an annual environmental report in respect of the undertaking after 12 months from the date of commencement of operation and after every 12 months thereafter. 3.4. It is also not in doubt that the area in question is residential in nature. The existence of other places of worship as alleged by Defendant should not by itself in my view suffice to demonstrate the character of the area, especially when there is no evidence of the propriety of the siting of these alleged places of worship. A worship center situated in a residential area is likely to adversely affect the quiet enjoyment of other property owners in the vicinity and affect the environment adversely without the appropriate safeguards. Therefore, the Regulations discussed in the foregone if complied with, the compliance ought to have been demonstrated to the court, but this was not done though Defendant alleged being in possession of the requisite permits. 3.5. Defendant’s evidence does not bear it out that the area under consideration is not exclusively residential, at any rate the allegation that the church had already been constructed by the year 2014 as alleged, is inconsistent with Defendant’s own Exhibit 1, the site Plan and the plot allocation note Exhibit 3 all of which are clearly dated and executed in the year 2017. DW1’s admission under cross-examination that the disputed land had nothing on it when she transferred it to the church did not help Defendant’s case much, as it further destroyed the credibility of this allegation. 3.6. This inconsistency is material as it relates to the acquisition and use of Defendant’s land, and as explained in Apaloo v. The Republic (1975) 1 GLR 156 at 173 and The Page 13 of 16 Republic v. Adekura [1984-86] 2 GLR 345, CA. conflicts and inconsistencies in evidence that have a relevant bearing on a judgment must relate to facts in issue. The acquisition and justification for the use of Defendant’s land for its current purpose are all issues on which this judgment turns. 3.7. Under Section 80(2) of the Evidence Act, NRCD 323 in determining the probative value to give to a witness’ testimony the Court may consider the credibility of the said witness and in ascertaining the credibility of the witness pay due mind inter alia to “the existence or non-existence of a fact testified to by the witness or a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial.” In Obeng v. Bempomaa [1992-93] 3 GBR p 1029 Lamptey JA. (As he then was) had this to say on the matter: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” 3.8. The inference I am inclined to draw is that Defendant and its witness’ credibility are dented, and I conclude saying that I cannot make a finding in favour of Defendant on its allegation that the church building existed in the year 2014. It is admitted that the disputed land as alleged by Plaintiff, was previously owned by DW1, and in view of all the evidence on record, I am inclined to a belief that it was allocated for residential purposes. The preparation of a new site plan or the transfer of the land to Defendant would not necessarily change the use of the land. I find that Defendant’s construction and conduct of its church activities on the land are without the requisite permits. Page 14 of 16 3.9. I am again mindful that the church as admitted by Sofo Prince Essuman and DW1 is situate on a parcel of land being only one plot on which there is already a two- bedroom mission house. It is a reasonable conclusion, that the church building itself would be small for the purpose it is intended to serve, and it is forseeable that if the membership of the place of worship should increase, the noise emanating therefrom would not be the only inconvenience for residents at the area to deal with, as parking and all other incidental requirements would affect other residents at the area. 3.10. I do not consider this to be a reasonable use of Defendant’s land, and I consider Plaintiff’s complaint actionable beyond damages, especially when this Court has not had the benefit of any evidence in the nature of a building or use permit, that would have established the multiple use character of the area. In view of these, I consider between the reliefs of damages, abatement and injunction which I may grant if justified, the latter being prohibitive in nature to be more appropriate. 3.11. As held in Regd. Trustees of Mission v. All States Trust Bank Plc. (2003) JELR 54326 (CA) by the Nigerian Court of Appeal, such an injunction, can only be granted where the Plaintiff shows a very strong probability upon the facts, that grave damage will accrue to him in future. “It is indeed a jurisdiction to be exercised sparingly and with caution, but in a proper case, unhesitatingly.” as stated by the Court. I am satisfied that this is a proper case for the exercise of such discretion. CONCLUSION On all the evidence I am satisfied that Plaintiff’s action succeeds, and the Court makes the following orders in favour of Plaintiff and his neighbours: a. An order of injunction restraining Defendant, its agents, members and all persons claiming through it from using the building on its plot as a place of worship. Page 15 of 16 b. I assess Plaintiff’s costs at GHS 3000.00. with interest to run thereon at the statutory rate of 28.88% per annum from judgment till final payment. SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (unrepresented) Page 16 of 16