Abdulai Vrs Cudjoe and Another [2023] GHACC 215 (26 April 2023)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON WEDNESDAY THE 26TH DAY OF APRIL, 2023 BEFORE HIS HON. JONATHAN DESMOND NUNOO ESQ. CIRCUIT JUDGE. SUIT NO. A11/03/20 MARY ABDULAI – PLAINTIFF H/NO. KZ 175/3 KOTOKOLI ZONGO VRS. 1. MR. CUDJOE 2. AGONA EAST DISTRICT ASSEMBLY - DEFENDANTS AGONA NSABA. Plaintiff and 1st Defendant present. 2nd Defendant absent. JUDGEMENT The Plaintiff is seeking the following reliefs. a. A declaration that the 1st defendant is not entitled to keep his building in such a manner as to turn the rain water falling therein onto Plaintiff’s dwelling house. b. A declaration that the 1st defendant is not entitled to keep his building in such a manner as to infringe on Plaintiff’s right of way. c. An order of perpetual injunction restraining the 1st defendant by himself, his agents, assigns privies workmen etc. from continuing to maintain the poultry farm and keep his said building and other structures so as to be nuisance to the Plaintiff. d. An order directed at the 1st defendant to demolish any structure or building which is a source of nuisance to the Plaintiff. e. An order of perpetual injunction restraining the 2nd defendant from issuing a building permit to the 1st defendant in respect of the building complained of. f. Damages for nuisance against the 1st defendant. g. Damages for negligence against the 2nd defendant. In the statement of claim the allegation of plaintiff which are essential to the claim are as follows: 5. For some time now the present, the 1st Defendant constantly caused offensive and pestilential smells to come onto and be on and about Plaintiff’s said dwelling house. 6. The said smells and vapours are caused and come from a poultry farm erected by the 1st Defendant on his premises knowing very well that the neighborhood is a residential area. 7. The birds from the poultry farm of the 1st Defendant are made to stray during the daytime and they come onto the dwelling house of the Plaintiff and defecate all over the dwelling house creating an eyesore. 8. The nuisance had steadily continued ever since and it especially objectionable anytime it rains. 9. Furthermore, in or about the year 2018, the 1st Defendant commenced the construction of a story building on portion of his land. The said structure is so built that the eastern portion thereof abuts the western portion of Plaintiff’s wall and the distance between the two erections is so narrow that criminals can easily scale over plaintiff’s wall and come into her dwelling house. 10. Again the gable of 1st Defendant’s building has been slopped towards Plaintiff’s dwelling house and when the said building is eventually roofed, rain falling on the roof would flow on to Plaintiff’s dwelling house no matter what. 11. Not only that, 1st Defendant’s building has covered portions of the access road leading to Plaintiff’s dwelling house thereby making ingress and egress to Plaintiff’s dwelling house almost impossible. 12. By reason of matters stated aforesaid, Plaintiff’s dwelling house has been rendered unhealthy, uncomfortable and unsafe to live in, and Plaintiff and members of her household have suffered great discomfort, inconvenience and upset. 13. The Plaintiff from the turn of events lodged a complaint with the Town and Country Department of 2nd Defendant entity and the resultant effect was a STOP WORK, PRODUCE PERMIT notice written on the walls of 1st Defendant’s building. The 1st Defendant then halted the construction until recently. 14. That the Plaintiff caused her Solicitors to write the 2nd Defendant complaining about matters stated herein and the 2nd Defendant has not been responsive to the complaint. 15. The Plaintiff states that the 2nd Defendant, its servants, agents and officers are guilty of negligence in their duty. Particulars of Negligence are as follows: a) By failing to take any or sufficient precautionary steps against the construction of the 1st Defendant. b) By permitting the construction of 1st Defendant’s building from foundation to the point where the STOP WORK, PRODUCE PERMIT notice was served. c) By failing and refusing to pay sufficient heed to the complaints of Plaintiff. d) In the meantime, the Plaintiff is aware that the 2nd Defendant is in the process of issuing a permit for the 1st Defendant to continue with his otherwise unauthorized construction that is causing nuisance. 17. The Defendants intends, unless restrained from so doing, to continue with the said unlawful acts. The Defendants filed an appearance and defence but the 2nd defendant for reasons known to them did not participate in the hearing. So their defence remained a mere allegation. 1st Defendant in his defense denied all the averments of the Plaintiff as usual. 1st Defendant said he obtained his land in 1989 and it is two plots of land. He has a dwelling place on one and the poultry on the other. He averred that his birds are not allowed to move from place to place as layers, they are in their coop. He further averred that the claims are speculative, and that he allowed 26ft interval while the Plaintiff left 21ft and even there is another poultry which is closer to the plaintiff abode. 1st Defendant admitted paragraph 13 of the Plaintiff’s claim and added that 2nd Defendant inspected 1st Defendant’s project caused him to shift his structure and assessed how much should be paid by the 1st Defendant which was paid before giving 1st Defendant permission to continue with his poultry, in paragraph 14 1st Defendant said paragraph 16 of Plaintiff claim is also speculative and must not be allowed to stand. He averred in conclusion that the Plaintiff is not entitled to her claim. Issues set down for determination are: 1. Whether or not the 1st Defendant has constantly caused offensive and pestilential smells and vapours from his poultry farm to come onto and be on and about Plaintiff’s dwelling house and same constitute nuisance. 2. Whether or not the 1st Defendant’s building has covered the access road leading to Plaintiff’s dwelling house thereby making ingress and egress to Plaintiff’s dwelling house almost impossible. 3. Whether or not the 1st Defendant’s construction of a story building on a portion of his land conforms to the building regulation. 4. Whether or not Plaintiff’s dwelling house has been rendered unhealthy, uncomfortable and unsafe to live in. 5. Whether or not the 2nd defendant has been negligent in the way it handed plaintiff’s complaint The Plaintiff case is that the 1st Defendant is putting up a story building without a building permit from the 2nd Defendant and because of lack of building permit, the building is illegal and does not conform to the plan of the area. Further the building is on her road thereby is impeding her access road to her house making ingress and egress almost impossible and the building is developed in such a way that if it rains on the roof the rain water will come into her dwelling by all mean. The Plaintiff also complained of the poultry farm that the 1st Defendant is having on his land. She claims there is constant offensive and pestilential smells and vapour on her dwelling coming from the poultry which has rendered her dwelling house unhealthy, uncomfortable and unsafe to live in and she and members of her household has suffered great discomfort, inconvenience and nuisance. She concluded that the 2nd defendant has been negligent in handling her complaints claims in that it has allowed the poultry farm to be on the plaintiff land knowing well that the area is a residential area and the story building to commence without permit and all that they did was to write STOP WORK PRODUCE PERMIT and she has heard the are about issuing permit to the 1st defendant 1st Defendant did not deny having poultry farm on his land but his assertion is that when he bought his land the Plaintiff has not come to live there. He said he used the land for piggery and later converted it to poultry and that his birds are confined being layers and does not go out let alone to Plaintiff’s land to defecate. He also admitted starting his building without a permit but after the report by the Plaintiff, to the 2nd defendant, the building inspector came and asked him to shift his building and they assessed how much he as to pay for the permit and he paid and receipts issued. He claims his building is not a nuisance in any way and that the claims of plaintiff was speculative and unfounded As stated above the 2nd defendant did not participate in this proceedings The law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non- existence. The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” see Section 12 (1) of the Act. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 14 of the Evidence Act 1975 (NRCD 323) provides that “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting” In Ackah v Pergah Transport Ltd. & Others {2010] SCGLR 728 at 738, Adinyira herself thus; “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often describe as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non- existence. That is the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence, Act 1975 (NRCD 323) IN RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. [2003 – 2004] SCGLR 420. In his supporting opinion Brobbey JSC stated of a Defendant at a trial in Holding 5 as follows: “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 evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has the 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…” The Plaintiff did not call any witness when she testified but later prayed the Court to call a surveyor which was granted and the surveyor drew a composite plan and report. This plan and report was not in favour of the Plaintiff and he sought to attack the credibility of the expert witness and even went ahead to file another application for another surveyor to be called which was refused by the Court because she was not successful in impeaching the credibility of the surveyor. I will return to the evidence of the expert witness and its impact on the case shortly. I will deal with issues 2 and 3 together and tackle the other issues all together next. Whether or not the 1st Defendant’s building has covered the access road leading to Plaintiff’s dwelling house thereby making ingress and egress to Plaintiff’s dwelling house almost impossible and whether or not the 1st Defendant’s construction of a story building on a portion of his land conforms to the building regulation. The Plaintiff did not give any evidence regarding how the 1st Defendant building has blocked the access road to her house which is making ingress and egress of the dwelling house impossible. I have combed through her evidence in chief and cross examination to no avail. It was DW2 who said the issue about access road was brought to their notice and they resolved same. This is what transpired when DW2 was cross-examined by Counsel for Plaintiff. Q: A: Did the 1st Defendant tell you why the Plaintiff sued him? Yes, he told me. Q: What did the 1st Defendant tell you relative to the dispute between them? A: He told me that the issue that came up between them and they tried to settle, the Plaintiff has brought the matter to Court. Q: A: And the issued you allegedly settled is in respect of access to road. That is correct, it is about road. Q: The issue you settled has nothing to do with the 1st Defendant having poultry on his premises. A: That is correct. Q: Again the issue you settled has nothing to do with the 1st Defendant story building under construction, correct? A: Correct. Q: I am suggesting to you that your evidence is immaterial to the issues in controversy. A: I agree that the issue in respect of poultry and building under construction, we did not deal with that, so I have nothing to say in respect of these matters. The question is why did the plaintiff make these allegations in his pleadings if she knew the matter regarding the access road has been resolved? 1st Defendant rather led evidence rather to the effect that there is no issue regarding his building being on plaintiff’s access road making ingress and egress impossible for her. Since she did not provide any evidence relative to the blocking of her access road all that is in her pleadings remained mere allegation because she was the one alleging, she bears the onus to prove what he has alleged before the burden will shift to the defendant but it was the 1st defendant who rather gave evidence in his denial. It can be gleaned from the questions posted to Dw2 and his answers that clearly the plaintiff abandoned that claim. I therefore hold that the 1st defendant’s story building is not on any access road of the plaintiff thereby making ingress and egress of her house impossible for her. In any case the report she made to the 2nd Defendant was not about blocking of her access road but rather lack of building permit for the story building and the nuisance the building will cause if roofed and how the building was close to her wall which can create avenues for criminal to scale over her wall. Turning to the issues of the story building being too close to plaintiff’s wall, lack of permit for the building and the rain water falling on Plaintiff compound if the building is roofed.. This was the evidence elicited from the 1st defendant under cross examination Q: This video shows your building under dispute vis a vi that of plaintiff’s building, correct. A: Correct. Q: In this video you could see the distance between your building under dispute and that of plaintiff’s wall, correct. A: The plaintiff fence wall is on my land, she removed one of my pillars and broke one of the pillars on the boundaries, the remaining pillar she broke is there on the boundary. Q: In other words, the video shows the distance between your building under construction and that of plaintiff’s wall, correct. A: The plaintiff encroached on my land, I do not share boundary with the plaintiff on the portion of land where my building is, I share boundary on that portion with one Rosemary that is the name on my site plan. Q: A: Q: A: Are you familiar with the video shown to you. Yes, that is the plaintiff’s fence wall. And you can also see your building under construction also. Yes, but the building is on my land, I was granted permit to put up my building. And your permission so called is for you to construct a story building, not so. it is. Q: A: … This was further evidence of 1st defendant regarding his story building being close to plaintiff’s wall. Q. Presently as we speak you are putting up a story building on your boundary with the plaintiff, correct. A: I am putting it on the portion of my land not on the boundary. Q: There is no distance between the Construction of the storey building and the plaintiff’s wall. A: There is a distance. Q: A: The distance you claim is nothing more than one feet. I left a space. Q: Using this Court is a reference point, where you are in the witness box how far is the distance from the storey building and the plaintiff’s wall, if the plaintiff’s wall is where you are standing in the box, where would your storey building be. A: I left a space she did not leave any space. Q: Using where you are standing in the witness box, as your storey building, where would the plaintiff wall be. A: I cannot imagine. Q: You can see me from where I am standing at the bar, correct. A: Yes. Q: A: And you have no disease of the eye, your eyes are sharp, correct. Yes. Q: The distance between your construction and Plaintiff wall is less than the distance from the witness box and where the bar is.\ A: I cannot imagine. Q: Look at exhibit “B1” … Q: Exhibit B1, shows the distance between plaintiff’s wall and the construction, correct. A: I left a space and I have permissions from the regulatory authority to put up the building there. Q: I am saying that Exhibit “B1” shows the distance between the plaintiff’s wall and your building, not so. A: I cannot imagine, I said I left a space and I had permission from the approving authorities. Q: You are not a man of integrity you have a document, a photograph shown to you and you are refusing to speak to it. A: It is a picture and it can be anything. Q: A: How many feet apart? I cannot tell but it is more than five feet. Q: Since you cannot tell I am suggesting to you that your poultry farm and the residence of the Plaintiff is not more than five meters apart. A: It is more than that. This was the evidence the plaintiff gave when she was quizzed.in respect of the building being closed to her wall Q: You reported the 1st Defendant to the District Assembly because of the boundary dispute. A: That is not correct, I reported him to the Assembly because of the nuisance, he has put up a building on my wall. Q: You are aware that the 1st defendant is your neighbor and you share common boundary. A: Correct. Q: You know that if you share a boundary with your neighbor you leave a portion or a space and your neighbor does same. A: The Assembly told me and I did same. Q: A: The 1st Defendant left (3) feet, how many feet did you leave. I cannot tell I left that for the Assembly and they came to inspect. Q: But you are aware that the 1st Defendant left three (3) feet between your land and his. A: That is not true he did not leave three feet. Q: A: How many feet did he leave. If I measure it does not even reach one foot. Q: When you went to the land you were aware that 1st Defendant left three feet between his land and yours but you even broke his pillars. A: That is not true. Let me say that the plaintiff in her statement of claim and evidence in chief did not say anywhere that the coop and the story building under construction is so close to her wall and it can be ignored because she set up entirely new case in that regard but since part of the case was fought fiercely on that line this court deemed it feet to give it the attention it deserves. Unlike the 1st defendant the Plaintiff could not tell the distance she left between the common wall and her building yet she is complaining about the distance between the 1st defendant story building he is putting up and the wall. She even said the 1st defendant has put up a building on her wall which was false in the first place. When the plaintiff failed to adduce cogent evidence to support her case she then went fishing for evidence by filing an application for a surveyor to be appointed which the court granted for the expert to help the court to determine this nagging boundary issue. This was what transpired when the expert witness came to testify By CW1 ;- The findings of the survey as carried out are well spelt out in the report and are as follows:- Plaintiff’s wall which marks portion of the boundary is edged red. The 1st defendant’s coop and building at lintel stage is marked 1 and 2 respectively in broken blue. It is also worthy of note that 1st defendant coop measures 0.05 of an acre or approximately 202.34 square meters in floor size. Again the distance between the plaintiff wall and 1st defendant coop and the uncompleted building are 4.21 and 5.23 feet respectively. That is the end of the findings. When Counsel for plaintiff crossed examined Cw1, this was what transpired. Q. I understand you personally went to the disputed area and personally took measurement in other words you did not assign the work to any one? A. That is correct. Q. And so when a video clip of the disputed area is shown to you, you can identify the disputed area. correct? A. As far as I am concerned there is no area in dispute as far as this work is concerned Q. Take a look at the video clip. A. I have watched the video. Q. The video clipped you have just watched shows what you went to measure that is the plaintiff building and 1st defendant building under construction? A. Correct Counsel then tendered the video in evidence through Cw1 with objection from counsel for 1st defendant which was overruled Cross examination then continued Q. And you want the court to understand you to be saying that from the video you just watched, the distance between Plaintiff‘s wall and 1st defendant’s building under construction is not more than 5.25 is that the case? A. That is the case per the video per the video I watched which does not necessarily correspond to the points pointed out by the 1st defendant on the ground. Q. But you would agree with me that from the video, the difference between 1st defendant’s building which is under construction and the plaintiff’s building is not more than 2.77 feet? A. That is correct. Q. Again from the video the distance between the Plaintiff’s wall and 1st defendant’s hen coop should not measure more than 3.10 feet? A. That answer is beyond my capacity and should be directed to the building inspectorate of the Agona east District Assembly. Q. Were you not the one who said you measured the distance between plaintiff’s building and 1st defendant’s hen coop? A. Yes, I did however the previous question as posed by counsel was suggesting to me to be in known of what distance must exist between the two separate building or structures which is beyond my scope of operation. Q. I did not suggest what you are saying, the question I asked is this from the video you watched distance, the distance between the plaintiffs building and 1st defendant’s hen coop is not more than 3.19 feet, correct? A. That was not the question as far as my memory serves me, in the video there was nothing in reference to the hen coop, the video only was showing measurement of the wall of plaintiff and the uncompleted building of the 1st defendant at lintel stage. Q. And the video showed the width between the plaintiff’s building ad 1st defendant wall, not so? A. The video showed the measurement between the 1st defendant’s structure and the plaintiff’s wall. This was what Cw1 said when Counsel for 1st defendant cross- examined him. Q. When you visited the site did you see any problem regarding the 1st defendant’s coop. A. As far as I am concerned there is no problem with the coop. When counsel for plaintiff realized that the evidence of Cw1 was not in his favour he then brought another application for an order to call a new surveyor and in paragraph 6 of the affidavit in support counsel reason for this application was that “That the surveyor appointed seems to have been compromised and so the report he presented is not a true reflection of matters on the ground.” This application was dismissed because counsel was unable to substantiate this serious allegation and this tells a story of desperate plaintiff now seeking and fishing for evidence when her case is failing simply because she has no evidence whatsoever to support her claims. I have said that she was unable to tell the distance she left between her building and her wall so how can she attack the 1st defendant that he rather failed to leave a space between his story building under construction. From the evidence adduced I am convinced that 1st defendant has clearly demonstrated that there was sufficient distance between his coop and his uncompleted story building and the wall which I believe is the common wall between the parties not to mention the plaintiffs building. From the evidence adduced if any of the parties did not leave any distance between their structures and their common wall it will be the plaintiff and not 1st defendant. Now regarding the rain water that will come onto plaintiff’s land if the 1st defendant is allowed to complete his building, the Plaintiff is only conjecturing and conjectures are not facts that a court of competent jurisdiction can rely on to make a determination in such a serious case. This was the evidence that was also elicited from 1st defendant under cross- examination. Q: The so called story building which you claim you have permit to construct, will be roofed eventually. A: That is so. Q: You are aware that when you roof the building it will cause nuisance to the plaintiff. A: There are different types of roofing. Q: I am suggesting to you that if you eventually roof your building each time it rains water from your roof will flow into plaintiff house which will eventually cause nuisance. A: It will not, I will provide a gutter to my roof. Q: I am suggesting to you that your building under construction is against the national building code. A: That is not true I was granted permit by the Assembly. It is only when the building is roofed and the rain falls on it that the nuisance so envisaged by the plaintiff can be actualized and the Plaintiff can sue on it. With the evidence adduced, I am not sure how Plaintiff is able to say concretely that when rain falls on the 1st Defendant roof it will land on her dwelling so he should be ordered to pull down his building. If I may ask which expert of roofing made the evaluation and came to that conclusion and told the plaintiff that considering how the gable of the building is structured if it is roofed the rain water will come onto her premises? The answer is none. If there was such expert opinion the Plaintiff should have made the court aware and if it was the Plaintiff’s own assessment she ought to have given the court the benefit of her analysis and conclusion but merely looking at the gable of the building and making such an assumption will at best be rebuttable which in my view has been ably rebutted by the 1st defendant.in my view. This is serious matter calling for an order to have the building demolished, the plaintiff ought to provide very persuasive evidence which has serious force to warrant the court to grant such a monumental order which she has failed She did no call any such evidence and this court is not persuaded by conjectures The 1st defendant said the roofing of his building can be made in such way that rain water that will fall on his building will not go onto the Plaintiff’s land so the nuisance as I see it cannot be foreseeable and there is no cause for alarm in the light of the evidence adduced and that claim of plaintiff must be dismissed as unfounded This leads me to the issue of building without permit This is what transpired when plaintiff was cross examined:- Q: A: Q: A: You reported about the story building he was putting up and not any other issue. That is not true. You are aware that the officers of the Assembly came there to inspect his work. Correct. Q: The officers after inspecting the work asked the 1st Defendant to pay a levy for the work he was doing. A: I do not know about that. Q: Have you read the supplementary statement of the 1st Defendant filed on 20th March, 2020. A: The documents are with my lawyer; I hope he has been served with it. Q: A: If your lawyer has seen it then you have seen it. I admit to that. Q: So you cannot say that you are not aware that 1st Defendant paid a levy to the Assembly for the work the 1st Defendant is doing on the land. A: That is between him and the Assembly. From the evince adduced the 1st defendant started putting up his story building without a permit but 2nd Defendant acted on the complaint made by the Plaintiff by issuing warning notice to the 1st Defendant to stop his building and produced his permit. This is the normal course which the institution mandated to act on such complaints take in the course of their investigation and they take it from there. In this country developers usually commerce their building projects and when confronted by the appropriate agency then they apply for the building permit. This Court is not endorsing this practice as it has serious repercussion for the agency and the developer himself but that is a notorious fact so it is good that the Plaintiff reported the default to the appropriate quarters who acted rightly in my view, they stopped the 1stDefendant for the continuing with his illegality and subsequently took steps to go into the matter before they made the 1st Defendant remedied the default by letting him pay the appropriate fees for the permit. As to whether 2nd Defendant can issue the permit after the 1st Defendant has started his building is the sole prerogative of the 2nd Defendant and I do not think it is the Plaintiff who should teach them how to do their work, If the building does not conform to the layout of the area it is the 2nd Defendant that can tell unless the Plaintiff can produce evidence of the layout of the area and show that the 1st Defendant’s building does not conform to the architecture of the area and the 2nd defendant has looked on unconcerned. The plaintiff particulars of negligence against the 2nd defendant were as follows:- a) By failing to take any or sufficient precautionary steps against the construction of the 1st defendant. b) By permitting the construction of 1st Defendant’s building to the point where the STOP WORK, PRODUCE PERMIT was served c) By failing or refusing to pay sufficient heed to the complaints of plaintiff And in paragraph 16 of her statement of claim she said thus; “In the meantime the Plaintiff is aware that 2nd Defendant is in the process of issuing a permit for the 1st Defendant to continue with his otherwise unauthorized construction that is causing nuisance.” The Plaintiff did not say anywhere in her evidence in chief that the building of 1st defendant does not conform to the plan of the area. In fact that was not part of her complaints. The National Building Regulations 1996 (LI1630) r 1, 2and that Counsel for Plaintiff mentioned in his address has nothing to do with Plaintiff’s case. Even if that was her case her remedy will be to issue a mandamus to compel the appropriate authority to act in accordance with the law and not to come to Court to vindicate such claim as of right without recourse to the appropriate authorities. Plaintiff’s statement of claim and her evidence in chief are the nuisance that the building will pose if it is roofed which I have said she was unable to substantiate and not that the building does not conform to the architecture of the area. The 1st Defendant has taken steps to remedy his default and the appropriate authority (2nd defendant) has assessed his fees for the permit and 1st Defendant has paid and he has been issued with a receipt for the payment of the permit the sequel is that the it must be presumed that appropriate authority has done its official duty. Plaintiff’s attack on the 2nd defendant is therefore unfounded and has no basis at all I must say. Section 37.(1)of Evidence Act NRCD 323 stipulates that It is presumed that an official duty has been regularly performed. The plaintiff called survey to come and testify to issue regarding the distance between her wall and 1dfendants Let me emphasized that In plaintiff’s statement of claim and evidence in chief she did not even give evidence of the coop and the story building being developed so close to her wall. In fact, her evidence in chief was that he story building has covered portions of the access road leading to her house making ingress and egress to her dwelling house impossible. I do not see the Plaintiff having any legit complaint and the necessary evidence to support her claim on this issue is also lacking. Let me turn my attention to the other remaining issue that is nuisance the poultry farm is causing to the Plaintiff. The plaint of the Plaintiff is that the uncompleted building and the poultry farm is so close to her wall and roofing of the building if completed is likely to cause rain to come onto her property but these claims having been resolved in favour of the 1st defendant what is left now is whether the poultry farm is causing the nuisance complaint of and we shall see whether or not the plaintiff has discharged the burden imposed on her in such a case. Private nuisance is described in page 646 of Winfield & Jolowicz on Tort 17th Edition as unlawful interference with a person’s use or enjoyment of land or some right or connection with it. The law of private nuisance represents an attempt to preserve a balance between conflicting interest, that of occupier in using his land as he thinks and that of his neighbour to quiet enjoyment of his land. Nuisance is about the law of give and take and the court is concerned with respective rights of the two parties and determining the permissible extent of the interference. Reasonableness is at core of the law of nuisance and the nature and quality of the 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 as unlawful, Reasonable ness has been held to be what legally right between the parties taking into account all the case. In Selleigh Danfield v O’Callaghan [1940] AC 330 at 903, it was held that the test of liability is what is reasonable in accordance with 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 interest of the competing interest of the parties, the court considers that 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 reducible minimum is itself the nuisance In making a determination the court would 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 complainant’s enjoyment of his property. The court would not accept the submission that the complainant should put with the harm because it beneficial to the community as a whole. Where the interference is with 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 v Adjei & Others [1976] 1GLR 431 the Court of Appeal held that the operation of a chop bar in a bamboo structure on apportion of land where a person had his residential building constitute 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 motive of committing it, whether it is done maliciously or in the reasonable exercise of rights and the effect of the commission, that is 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 grant of planning permission does not directly legalise an activity which amounts to nuisance. In Gillinghan Borough Council v Medway (Chathan) Duck Co Ltd (1993) QB 343, neighbours complained at the development of a new commercial port on the site of a diesel naval dock yard. This resulted in heavy vehicular traffic which 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 neighbourhood. In that case it was held that the grant of permit altered the character of the area preventing the locals from claiming in private nuisance. In his judgment Buckley I held that the question of nuisance to be decided by reference to that character as changed by the permit. In CFC Construction and others v Accra City Council [1964] GLR page 496 the plaintiffs brought an action against the defendants for damages for nuisance and interim injunction to restrain the defendants from dumping refuse near their property. Defendant denied the allegations and argued that as at the time of the trail the stench had ceased and there was only temporary interference with the 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. In trying to establish her claims in this regard Plaintiff said that for some time now to the present time, the 1st defendant has constantly caused offensive and pestilential smells and vapours to come into and be on and about her dwelling house and the said smells and vapours are caused and come from a poultry farm erected by the 1st Defendant on his premises knowing very well that the neighbourhood is residential area. That birds from the nuisance poultry farm of the 1st Defendant are made to straw (sic) during day time and they come onto my dwelling house and defecate all over the dwelling house creating an eyesore are let loose and they come on her premises The nuisance has steadily continued ever since and it is especially objectionable anytime it rains. This was the evidence adduced when the 1st defendant was cross examined Q: A: Q: A: Q: A: You live at Kotokoli Zongo correct. Correct. Your immediate neighbor is the Plaintiff, correct. That is so. Your neighborhood Kotokoli Zongo is earmarked as a residential area, correct. I cannot tell. Q: Apart from your building and that of the plaintiff there are other residential properties that are enjoying thier properties. A: There are other residential properties as well as poultry farms which adjoins our properties. Q: I am suggesting to you that there is no other poultry farms in the neighborhood except yours. A: There are. Q: Since you do not know that your area has been earmarked as residential area I am suggesting to you that the area has been earmarked as a residential area and not a farming area or industrial parks. A: I cannot tell. Q: A: You described yourself as chief environmental officer, correct. Yes. Q: You are aware that it is unhealthy for human beings to cohabit with birds. A: My birds are housed and it is far away from where the plaintiff stays. Q: A: Q: A: Your poultry farm and the Plaintiff residence is not more than five feet away. It is more than that. Presently as we speak how many birds are there in the farm. The poultry farm is on two sides of the compound, on one side the house has 150 birds and on the other part it houses 460 birds. Q: As an environmental Health Officer, birds has potential of transmitting diseases when they cohabit with humans close to each other. A: The disease could be transmitted by birds to human only by human consumption of the birds. Q: A: You know of the disease called onithosis. No. Q: This onithosis is a disease which occurs when a person in hails bacterial from a feather of a bird. A: My birds are far away from where the plaintiff resides. Q: Your birds are made to stray from your compound on most part of the day to Plaintiff property. A: I do not allow my birds to stray with poultry when you allow them to stray they will bring infection which will end up destroying all of the birds. … Q: Have a look at the video file number MVI-6401 on exhibit “C” is that the poultry farm you said is closer to the plaintiff’s apartment. A: Yes, that is it. Q: A: You would agree with me that the poultry farm is not operational. It is operational if we go there now are birds in the farm presently. Q: I am suggesting to you that the poultry farm that I have shown to you in the video is not operational. A: It is operational birds are in right now. Q: Take a look at video number MVI-6403. . . . Q: Take a look at file number MVI-6404 and listen to the sound bite. Q: A: This video shows your poultry farm, correct. No, that is not my poultry farm. Q: A: In the video played you heard birds making noise. That is so, the plaintiff has local birds’ fowls in her house so I do not know whether the noise from the birds are coming from her house or not. Q: The video you saw and the noise shows your farm and the noise that emanate from your house. A: That is not my farm it may be another farm nearer to the plaintiff’s house and the noise from the birds may be from the local birds from her compound because she has local fowls. Q: You can recognize an uncompleted building adjacent to the wooden structure in the video. A: Yes, that is for the plaintiff, she is also putting up a story building. Q: That is the part of your building you earlier on identified as your building under construction. A: That is not true, the building you have just shown to me is for the plaintiff. Q: Take a look at MVI-6405. Q: A: This video shows your poultry farm vis a vis the plaintiff wall not so. Not so. Q: I am suggesting to you that the plaintiff does not keep fowls in her house and has no story building. A: She has a story building which is at the same level as mine. Counsel for Plaintiff said his attention has been drawn that the video he used to do the cross examination is that of the 1st Defendant which the court acknowledged. Counsel for Plaintiff then continued with his cross examination Q: Look at the file called produced 2 MP4 on exhibit C corresponds exactly to the video you have tendered which is marked exhibit 3, correct. A: I do not know what the video is about it is not clear I cannot see what is being shown. Q: What you are seeing now is the Plaintiff wall and your poultry farm. A: That is her wall but her wall is on my land and she has no authority to put up that wall. She was warn not to put up the wall when she was about to put the wall by the chief and elders that is our grantors of the land. The Mbrantehene (youth leader) was among the people who came to warn her not to put the wall. Q: Apart from the Plaintiff’s alleged unauthorized wall you also saw and heard from this file your poultry farm and the noise that emanating from your farm. A: I have told you that the poultry farm in the video is not my poultry farm. Q: A: You tendered exhibits 3 and you are familiar with the contents therein. Correct. Q: If you are familiar with the contents of exhibits 3, tell the Court where file number MVI-6405 shows. A: That is my poultry farm. Q: If you have not admitted that file is your poultry farm check file number MVI-6405 shows the distance between your poultry farm and the plaintiff’s wall. A: That is the plaintiff wall and my poultry farm but where the poultry is located is not where the Plaintiff stays. Q: Your poultry farm and your building under construction is an eyesore and nuisance which should be removed or demolished. A: That is not correct: it is not a nuisance. The poultry is kept properly. This was the evidence solicited from Dw1 under cross examination Q: A: Q: A: Did I hear you say you are a retired social worker. Yes. Aside that you have not worked yourself in any creative venture. No just farming. Q: What type of farming crop or animal. A: Crop. Q: A: So you have never been engaged in animal farming. I was taking care of someone animal farm. Q: Which animals were you taking care off. A: Pigs. Q: A: Q: A: These pigs were not being reared at the area of Kotokoli Zongo, correct. It was at Kotokoli Zongo but during that time there were no residential properties at that area. So you stopped the pig farming because people has started living in that area. Correct. Q: You again stopped because you realized that pigs are not to reside with people in the same area, not so. A: That is so. Q: A: Q: A: You live within Kotokoli Zongo, correct. Yes. Not far from the 1st Defendant house, correct. Not far at all. Q: That entire area that you live with the plaintiff and the 1st defendant, you are aware that it is a residential area, correct. A: Correct. Q: A: And you know that plaintiff and defendant share a common boundary. That is correct, but the plaintiff has walled her house, the pillar that forms the boundary between the parties has broken and the plaintiff put up her wall and encroached on the 1st defendant land. Q: I am suggesting to you that plaintiff has not built a wall on 1st Defendant land as you claim. A: The pillar is there and site plan shows that the plaintiff has trespassed onto the 1st Defendant’s land. Q: A: Q: A: You are aware that the 1st defendant has a poultry farm on his land. That is correct. And you know that birds from the poultry farm are let loose most of the time. No, that is not true. Q: I am suggesting to you that there is no other poultry farm that is close to the 1st defendant’s land except the 1st defendant. A: That is not true there is another poultry farm near her house, I do not know the name of that person but I know his wife is called Donkor. Q: You agree with me that before the plaintiff constructed her building her land was bear with bush on it. A: The 1st defendant was the 1st person who was there with another person before the plaintiff came to put up her building, it was my children who mold blocks for her with water from 1st Defendant’s place. Q: And at the time that plaintiff began his building you have stopped the piggery on the 1st defendant’s land. A: That is correct: I have stopped long ago. Q: At that same time or around the same time the Plaintiff started her building the 1st defendant has not started his poultry farm. A: He has already started. Q: A: So when did the 1st Defendant started his poultry farm? He started rearing pigs in 1984 or thereabout. It was after that, that he started the poultry. Q: At the time that he began his piggery in 1984 as you have stated has the 1st Defendant acquired his land. A: He has already acquired the land before I came to look after the pigs for him. Q: Were you not the same person who have stated in paragraph 4 of your witness statement that the 1st Defendant has bought his land in 1989. A: I know the 1st defendant in 1984 but it was from 1989 thereabout that I started and take care of the pig farm for him. Q: I am suggestion to you that you are not a credible witness in that in your witness statement you have said that the 1st defendant bought his land in 1989 but now in the witness box you are now saying that he bought his land in 1984. A: That is why I am explaining that I got to know him in 1984 before he acquired the land in 1989 after which I was taking care of the pigs. Q: A: As we speak the 1st Defendant is operating a poultry farm on his premises, correct. That is correct. Q: And you know that it is so because his birds are most of the time let loose. A: That is not true his birds are always in the coop. Q: A: Q: A: Can you tell averagely how many birds are in the hen coop. I cannot tell. Is it that you do not go to his house often or you do not go near the coop. I have been going to his house but I do not go near the hen coop. Q: Since you do not go near the hen coop you do not know that the birds are let loose all the time and they stray to the plaintiff property. A: The birds are always in the coop they are exotic birds so when they are laying eggs they are always in the coops. Q: Since you go to the 1st Defendant’s house very often, you are aware that he is putting up a story building. A: I am aware of that. Q: And at a point in time you remember that the local Assembly at a point wrote stop work on the structure. A: I do not normally stay here I travel to my home town. So I cannot tell whether they wrote Stop Work on it. Counsel for plaintiff said they have filed a request for the 2nd Defendant to admit certain facts but they have not received a response and since they have not responded they will advise themselves what to do next but they did nothing. Counsel for defendant raised this concern “The challenge we have is that the 2nd Defendant has not been part of the proceedings and we are not sure whether they have been served with any process and they are mandated in law to have 21 days’ notice before they are sued. I do not know whether that has been done. Counsel for plaintiff then said that he of the view that their 2nd defendant’s failure to respond to their request means an admission and will deal with that according to the rules. Again Counsel for plaintiff failed to demonstrate to the court how failure of the 2nd defendant to respond to their request impacts positively on their case. 2nd defendant entered appearance and filed a statement of defence but failed to participate in the proceedings so I do not understand Counsel for 1st defendant’s qualms. If the mandatory notice was not served 2nd defendant, they are the one to raise it and not counsel for 1st defendant. I have watched the video evidence tendered but I do not see any bird on her Plaintiff’s dwelling neither do I see any fowl fecal matter on her premises. As to whether the area is purely for residential purposes is hard to tell because there is an admission by the plaintiff that there is a poultry farm in the area but there are no birds in the coop, but! defendant and Dw1 insisted that there are birds in that hen coop. If there are no bird in the coop does that mean that farmer has been prohibited from farming which is why there are no birds in that coop. In any case since there is no evidence that that farmer has been prohibited from farming because the area is solely for residential purposes, in the absence of any solid evidence that the area is solely earmarked for residential purposes this court cannot rely on what plaintiff is saying to restrain the 1st defendant in the absence of any cogent that his poultry is a nuisance As stated there is no evidence as to whether the area is solely earmarked solely for residential purposes and the plaintiff being the one making the allegation has the onus to proof what she has alleged. There is evidence that the 1st defendant was initially rearing pigs on the land till people started settling in the area and he changed to poultry so as the evidence stands the area gas been used for farming purposes since and if the area has been fully zoned for only residential purposes there must be evidence to that effect. Counsel for plaintiff made mention of subpoena but he did not subpoenaed anyone from the Assembly to testify in support or in denial of the allegation. As stated above Counsel for Plaintiff attempted to rely on failure of the answer from the 2nd Defendant as an admission but an admission for what? The writ is not only against the 2nd defendant but it involves the 1st defendant and the plaintiff claim was not about whether the area is earmarked solely for residential purposes but that 1st defendant’s poultry is causing nuisance which is a the law describes private and not public nuisance as the plaintiff is now trying to bring to the fore. The Court witness in his evidence said that the 1st Defendant poultry is not closed to the fence wall of the Plaintiff as the Plaintiff seems to suggest and if there is a pestilential smell and vapour on Plaintiff’s land Plaintiff is seeking to suggest she should have supported her evidence by calling an expert to testify to her allegation but not to mount the witness box and repeat her allegation. At least it should not be hard for the Plaintiff to at least call evidence in support of her assertion that 1st defendant’s birds are allowed to stray and they come onto her compound and defecate all over making her dwelling place an eyesore has she said. All the authorities cited above in my view shows that once the plaintiff is able to produce strong evidence that she is suffering she must succeed in her claims but this is not so in this case. It was held in Boakye v Asamoah [1974] 1GLR 38 holing 4 in the head notes that follows:- The plaintiffs and the defendant jointly raised a loan of ¢3,000. 00 for which each party mortgaged his cocoa farm to the common creditor. The loan was equally shared and they became jointly liable for its repayment. Sometime later, the creditor accepted from the parties ¢2,920. 00 in full satisfaction of the loan. The plaintiffs contending that the defendant had paid only ¢120.00 of the repayments whilst they had paid the defendant's due share of ¢800.00, sued claiming that amount by way of indemnity. At the trial, the plaintiffs merely rested on the evidence of the common creditor who averred that the defendant had paid to him only ¢120.00 being the proceeds from the defendant's mortgaged farm. In proof, the creditor tendered receipts covering only ¢68. 60. The evidence also showed that ¢710. 00 out of the money being claimed represented the commuted monetary value of labour services rendered by the plaintiffs on behalf of the common creditor, without the knowledge of the defendant. After the plaintiffs had closed their case, the defendant made a submission of no case on the grounds that the evidence was unsatisfactory and unreliable. In his ruling, the trial magistrate overruled the submission, denied to the defendant his right to call further evidence even though he had not been put to his election, held that the onus was on him to prove that he had paid more than ¢120.00 and therefore gave judgment for the plaintiffs. On appeal, Held, allowing the appeal: (4) The well-known legal or persuasive burden of proof was the burden borne by the party who would lose the issue unless he satisfied the tribunal of fact to the appropriate degree of conviction. The plaintiffs therefore had the burden of producing sufficient evidence to justify a finding that the defendant paid only ¢120.00; their reliance on the bare evidence of the creditor was insufficient. Consequently, the trial magistrate had palpably erred in ruling that the onus was on the defendant to prove that he had paid more than ¢120.00 because it amounted to calling on the defendant to prove a negative fact which was peculiarly within the knowledge of the plaintiffs' witness. See Dicta of Bayley J. in R. v. Turner (1816) 5 M. & S. 206 at p. 211 and of Ollennu J. in Majolagbe v. Larbi [1959] G. L. R. 190 at p. 192 d. I have said that the 2nd Defendant in my view has not acted negligently in the circumstances of this case and their failure to participate in this proceedings did not affect the case of the 1st defendant. . My conclusion is that the Plaintiff has failed to proof her claims in accordance with law so her claim is dismissed in its entirely. Plaintiff is to pay a GHC10,000.00 cost to the 1st Defendant. B. B. Simpson for the Plaintiff. Cab Addae for the 1st Defendant. (SGD) JONATHAN DESMOND NUNOO ESQ CIRCUIT JUDGE 42