Anyankwa and Others v Temple of Praise and Others (C13/12/2021) [2024] GHAHC 553 (3 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON TUESDAY THE 3RD DAY OF DECEMBER, 2024 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURT JUDGE SUITNO. C13/12/2021 1.PHILOMENA ANYANKWA PLAINTIFFS 2.MICHAELOPPONG ATUAHENE 3.EMMANUELDUKU 4.MADAMYAA ACHIA VS. 1. TEMPLE OF PRAISE DEFENDANTS 2.ASUNAFONORTH MUNICIPALASSEMBLY 3.ENVIRONMENTALPROTECTION AGENCY JUDGMENT 2ndPlaintiff present 1st,3rdand 4thPlaintiffs absent 1 Defendants absent KwasiFynnforthe Plaintiffs absent Roland BoadiGyanfor the 1stDefendant present PLAINTIFFS’CLAIMS AGAINST THEDEFENDANTS The Plaintiffs issued a writ of summons on 22nd September, 2020 claiming against the Defendants asfollows; (a) An order for the 1st Defendant to cease its services which is causing a nuisance in the Plaintiffs’ residential neighbourhood. (b) Anorderdirected at the 2nd Defendant to revokeany authorizationgranted tothe 1st Defendant in violation of the relevant law and procedure for procuring such authorization. (c) An order of perpetual injunction restraining the 2nd Defendant from unilaterally changing the residential status of the Plaintiffs’ community or rezoning same without the full participationofthe localcommunity. 2 (d) An order directed at the 3rd Defendant to revoke any authorization granted to the 1st Defendant in violation of the relevant law and procedures for procuring such authorization. (e) An order of perpetual injunction restraining the 3rd Defendant from unilaterally permitting the noisy activities of the 1st Defendant without full participation of the local community. (f) Generaldamages (g) Plaintiff’scost and legalfees forthese proceedings onfull recoverybasis. PLAINTIFFS’CASE The 1st and 2nd Plaintiffs are beneficial owners and residents of house number MAB/MM/152 which they have occupied peacefully since 1994. The 3rd Plaintiff resides in house number MAB/MM/153 and has been in peaceful occupation of the property since 1989. The 4th Plaintiff is a ninety (90) year old woman and beneficial owner of house number MAB/MM/153 and she has been in peaceful and quiet occupation of her property since 1987. Recently the 1st Defendant, Temple of Praise (TOP) built a mission house and awoodenstructure onapiece ofland encircled bythe Plaintiffs’ respective 3 properties. The 2nd Defendant, Asunafo Municipal Assembly is mandated by law to prepare municipal development plans and permits for building structures with the involvement of the local community. The 3rd Defendant, Environmental Protection Agency controls volume, intensity and quality of noise in the environment upon receipt of application for environmental permit, to consider the concerns of the general public and immediate residents. In June 2020 the Plaintiffs noticed that the 1st Defendant started constructing a wooden structure in the neighbourhood and when the Plaintiffs enquired, the staff of the 1st Defendant assured themthatthey werenot putting up achurch. The Plaintiffsinformed the 1st Defendant that the neighbourhood is zoned for residential purposes and that the operation of a church in the neighbourhood would constitute nuisance to the residents especially those in close proximity with the church building. Contrary to the representative of the 1st Defendant’s assurances to the Plaintiffs, the 1st Defendant hurriedly constructed the wooden structure for church activities and claimed he obtained permit from the 2nd Defendant. The 1st Defendant conducts church service in the wooden structure and the excessive noise generated during the day and night constitutes severe and pervasive nuisance to the Plaintiffs which interferes with the Plaintiffs’ enjoyment oftheir residences. The Plaintiffs particularized the nuisance asfollows; 4 a. Excessive noise from the day and night church services has rendered it impossible to enjoypeaceful and quiet occupationofthe Plaintiffs’ respective properties. b. The 1st Plaintiff was forced to temporarily relocate to Kumasi which affected her business. c. The 3rd Plaintiff is aged and weak and the excessive noise from the 1st Defendant’s services makesit unbearable for her tostayin the property. d. The Plaintiffs are unable to undertake routine and domestic activities such as preparation of lecture notes, hosting visitors, undertaking basic assignments, telephone conversations, normalmeetings withguestsetc. The Plaintiffs contend that granted that the 2nd Defendant granted permit to the 1st Defendant to construct the church structure and the 3rd Defendant permitted the noisy activities of the 1st Defendant, the Plaintiffs were not consulted. The Plaintiffs’ case is that they requested the 2nd and 3rd Defendants to abate the nuisance failing which they would come to Court but the 2nd and 3rd Defendants did not budge. The Plaintiffs gave the statutory thirty days’ notice to the 2nd Defendant through their lawyer by a letter dated 20th July, 2020. While the Plaintiffs are deprived of the use and enjoyment of their properties, the 1st Defendant continued with the church services with support from the 5 2nd and 3rd Defendants. The Plaintiffs’ case is that unless compelled by an order of the Court, the 1st Defendant’s illegal and unlawful activities will not be abated. The 3rd Plaintiff stated that his brother re-located his cornmill machine from the neighbourhood twoyearsearlier beforethe 1stDefendant committed thenuisance. In their evidence, the 1st and 2nd Plaintiffs stated that following the 1st Plaintiff’s acquisition of house number MAB/MM/152 in 1994 the said area was zoned for residential purposes. She constructed a ten bedroom self – contain house on the property which she has occupied peacefully until the 1st Defendant’s recent nuisance activities depriving her of peaceful enjoyment of the property. The 2nd Defendant provided them with exhibit “A”, a copy of layout for the area which confirms that the area is zoned for residential purposes and exhibit “B”, a building permit. According to the 1st and 2nd Plaintiffs, exhibit “A” shows that the portions being occupied by the 3rd and 4th Plaintiffs and the 1st Defendant are designated areas for residential purposes. Before the 1st Defendant occupied the present place, one Kofi Quarshie and Abena Victoria occupied the place as their residence. The Plaintiffs attached photographs of the wooden structure the 1st Defendant erected as exhibit “C” and contend that the 1st Defendant’s structure has blocked the waterway in the neighbourhood which caused the neighbourhood to be flooded for the first time since 1994 during a downpour on26th 6 October, 2020. They attached exhibit “D” series, photographs which they claim are the blocked waterwayand theflooded houses in their neighbourhood. They lodged a complaint with the 2nd Defendant to stop the 1st Defendant from its noisy and unlawful activities but to no avail. The 2nd Defendant did not issue the 1st Defendant with any building permit or any permit to conduct its unlawful activities in the neighbourhood. The parties met the Municipal Coordinating Director and he confirmed that the 2nd Defendant had not issued the 1st Defendant with building permit or any other permit to conduct church service in the neighbourhood. The 2nd Defendant however failed to stop the 1st Defendant from its illegal activities. The 3rd Defendant stated that it did not authorize the 1st Defendant to undertake its activities in the neighbourhood but it rather wrote to the 1st Defendant to produce documents permitting its church activities in a residential neighbourhood. They caused their lawyers to write a letter to the Defendants to stop the nuisance per exhibit “E” but to no avail. The Plaintiffs gave the 2nd Defendant the statutory thirty days’ notice of their intentiontocommence legalactionagainst it. EVIDENCE OF THE 1STAND2ND PLAINTIFFS’ WITNESS (PW1) The Plaintiffs’ only witness, PW1 stated that he is a Physicist and has since 1994 operated and maintained communication equipment such as mobile, handy and base radios, frequency counters, oscilloscopes and the measuring of noise. He noted that the 7 1st and 2nd Plaintiffs engaged him to measure the noise levels emanating from the 1st Defendant’s church services. The 1st and 2nd Plaintiffs informed him that this Court has ordered the 1st Defendant to operate at minimum noise levels and within the confines of its premises. PW1 claimed that he has conducted several noise measurement investigations throughout the country. He conducted investigations on noise levels that emanates from the 1st Defendant’s church activities in the vicinity on 11th, 12th and 13th June 2021. He attached a copy of his report as exhibit “F”. Per his report he stated that the maximum noise generated by the 1st Defendant during church services is 85.9 dB(A) and 78.8 dB(A) and that the noise level generated by the 1st Defendant’s church activities breaches the levels permitted by the 3rd Defendant in commercial areas at 75.0 dB(A)and 55.0dB(A)permitted in residentialareas. EVIDENCE OF 1STAND 2ND DEFENDANTS The 1st and 2nd Defendants disputed the Plaintiffs’ claim that the neighbourhood is zoned for residential purposes and that operating a church in the neighbourhood does not constitute nuisance. The 1st Defendant denied giving the Plaintiffs assurances that it would not construct a church in the neighbourhood and further denied the Plaintiffs’ claim that the 1st Defendant hurriedly constructed the wooden structure. The 1st Defendant disputed the Plaintiffs’ claim that they spoke with the 1stDefendant to curtail its unlawful activities and it refused to do so. The 1stDefendant aversthat it conducts its church services in such a way that noise is not emitted beyond the required limit. 8 According to the 1st Defendant, the 1st Plaintiff lives with her husband in Kumasi although she comes from Mim. The 1st Defendant acquired plot numbers 80, 82 and 84 Block 1 Mim for its church activities including a mission house and church premises. According to the 1st Defendant, the 2nd Plaintiff complained to the 2nd Defendant about itschurch activities and the 2ndDefendant met the 1stDefendant and the2nd Plaintiff and thematter wassettled amicably by the2nd Defendant. It was resolved that the 1stDefendant should notuse microphones and drums during its morning devotions which the 1st Defendant agreed and the 1st Defendant since then conducts morning devotions on Wednesdays without microphones and drums. It also conducts its Friday evening services between 7pm and 8:30pm and Sunday services between 10am and 12 midday at minimal noise levels. The 1st Defendant contends that Christ Apostolic Church and Church of Pentecost operate within the neighbourhood and a corn mill is also operated in the neighbourhood so it finds it strange that the Plaintiffs are complaining about its church activities in the neighbourhood. The 2nd Defendant contends that records from its office indicates that the neighbourhood was not planned and the chiefs demarcated their own plots including the plots the Plaintiffs occupy. The 1st Defendant represented by Reverend Eric Kwame Twum, the Resident Pastor in his evidence-in-chief on behalf of the 1st Defendant stated that the 1st Defendant acquired plot numbers 80, 82 and 84 Block “F” Mim for church activities including amissionhouse and church premises. 9 The mission house is under construction on plot number 84 while the church premises is being constructed on plot numbers 80 and 82. That upon the 2nd Plaintiff’s complaint to the 2nd Defendant about its church activities on the land, they met at the 2nd Defendant’s premises and it was resolved that the church should not use microphones and drums during its morning devotions held on Wednesdays and the parties agreed. Consequently, the morning devotions held on Wednesdays were held without microphones and drums and the Friday services conducted between 7:00pm and 8:30pm are held with minimal noise. Sunday services held between 10:00am and 12noon are also done with minimal noise. The 1st Defendant finds it strange that although Christ Apostolic Church and the Church of Pentecost are located within the vicinity thePlaintiffs mounted this action against it. EVIDENCE OF 3RD DEFENDANT The 3rd Defendant stated that its officers did not permit the 1st Defendant to operate a church in the disputed neighbourhood and that it only knew of the pending suit when it was served with the writ of summons and statement of claim. Prior to being served with the writ of summons and statement of claim the Plaintiffs did not bring the suit to its notice. The 3rd Defendant’s case is that the instant action of the Plaintiffs is incompetent and that the Plaintiffs have no cause of action against it and they are not entitled to their reliefs. In its evidence in chief through its Ahafo Regional Director which was put in by the Plaintiffs as hearsay evidence, the 3rd Defendant stated that 10 apart from the 2nd Defendant it does not know the Plaintiffs and the 1st Defendant and it had not dealt with the parties before this action was instituted. After having notice of the suit, it visited the 1st Defendant’s structures and undertakings and found that the place is abuilt-up areasurrounded by residential neighbourhood. According to the 3rd Defendant it wrote to the 1st Defendant to produce the zoning letter or building permit but the 1st Defendant could not produce any document permitting activities and undertakings in a residential neighbourhood. On 13th January, 2021 it served the 1st Defendant with letter to halt its church activities. It found that runoff water from the northern section was impeded by the 1st Defendant’s construction activities and that the construction activities of the 1st Defendant could be the cause of flood in the Plaintiffs’ neighbourhood when it rains. The 3rd Defendant contends that it has not permitted the activities of the 1st Defendant in the disputed neighbourhood in any wayas claimed by the Plaintiff EVALUATIONOF THE FACTS,EVIDENCE ANDAPPLICATIONOF THELAW ISSUES SETDOWN FORTRIAL On 10th May, 2021 the Court differently constituted set down the following issues as the issuesfor trial inthis case; 1. Whether or not the 1st Defendant’s operations in the Plaintiffs’ residential neighbourhood amounts to nuisance. 11 2. Whether or not the 1st Defendant has lawfully procured any statutory permitand/or licence to operate achurch servicein the Plaintiffs’ residentialneighbourhood. 3. Whether or notthe Plaintiffs are entitledto their claimsin the suit. Section 12(1)and (2) ofthe Evidence Act, 1975(NRCD323) statesthat; 12.Proofby apreponderance ofthe probabilities (1)Exceptas otherwise provided bylaw, the burdenof persuasion requiresproof by a preponderanceof the probabilities. (2)“Preponderance of the probabilities”meansthat degree of certainty of belief inthe mindof the tribunal of factor the Courtbywhich itis convinced that the existence of afact ismore probable than its non-existence. The Blacks’ Law Dictionary 10th Edition by Bryan A. Garner Pages 1233 and 1234 defines nuisance asfollows; A condition, activity, or situation (such as loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easementson the land or of publichighways. 12 A nuisance may generally be defined as anything that works or causes injury, damage, hurt, inconvenience, annoyance, or discomfort to one in the enjoymentof his legitimate and reasonable rights of person or property; or that which is unauthorized, immoral, indecent, offensive to the senses, noxious, unwholesome, unreasonable, tortious or unwarranted, and which injures, endangers , or damages one in an essential or material degree in, or which materially interferes with , his legitimate rights to the enjoyment of life, health, comfort, or property, real or personal. Anuisance may existnot only byreason of doing an act, butalso by omittingto perform aduty. “A nuisance may be merely a right thing in the wrong place, like a pig in a parlor instead of a barnyard” In the case of Bissi vs. Tabiri @ Asare [1987 – 88] Ghana Law Report (GLR) 360, the Courtheld inholding (2) asfollows; (2) The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. Consequently the trial judge was justified in accepting the case of the plaintiff on 13 the materials and money he had contributed towards the construction of the house, in spite of the discrepanciesin the evidence of the firstand fourth plaintiffwitnesses on the quantities. In the case of Aidoo vs. Adjei & Others (1976) 1 GLR 431 at 433 and page 440, the Courtheld that; (4) The operation of a chop bar in a bamboo structure on a portion of land where a person had his residential building constituted nuisance. Both the operator and those who authorised the operationwould be liable in damages. Page 440 There is no evidence of what a "chop bar" is but I think it is a matter of which I ought to take judicial notice. I am not going to assume judicial ignorance of what everybody knows in this country. The operation of a "chop bar" in a bamboo structure on a portion of land where the appellant has his residential building, will constitute considerable nuisance to him. The second and third respondents on their own showing, authorised this nuisance on the appellant’s land. They are all liable to him in damages. In all the circumstances, I would award in favour of the appellant against the respondents, jointly and severally, ¢600.00 damages for this undoubted wrong. The EnvironmentalProtection AgencyAct, 1994(Act 490)provides that; 1.Establishment oftheAgency 14 (1)There is established by this Act abody tobe known as the Environmental Protection Agency referredto inthis Actas the “Agency”. 2.Functions Thefunctionsof theAgency are; (a) to advise the Minister on the formulation of policies on all aspects of the environment and in particular make recommendations forthe protection of the environment; (g) to issue notice in the form of directives, procedures or warnings to such bodies as it may determine for the purpose of controlling the volume, intensity and quality of noise in the environment; (j) to act in liaison and co-operation with government agencies, District Assemblies and other bodies and institutionsto control pollution and generallyprotect the environment; (k) toconduct investigations into environmentalissues and advise the Ministerthereon; Iwill discuss issue (2) first; ISSUE2 “Whether or not the 1st Defendant has lawfully procured any statutory permit and/or license tooperatea churchservice in thePlaintiff’sresidential neighbourhood.” 15 Per the evidence proffered by the Plaintiffs they have lived in the area peacefully since 1987/1994 and may I say that even with a corn mill which was relocated recently without any problems until the 1st Defendant came around in June 2020 to put up a wooden structure and started church service with about one hundred members. The service involves clapping, singing, dancing, praying, use of musical instruments among others which created nuisance to the Plaintiffs. The noise levels prevented the Plaintiffs from peacefully enjoying the neighbourhood which prevents them from having ordinary telephone conversations, preparation of teaching notes and peaceful sleep at night among others. The 1st Defendant claims that it acquired the place for the purpose of establishing a church but it did not tender any document to convince the Court. The Plaintiffstenderedexhibit “A”whichaccording tothem is the layout ofthe area. The Plaintiffs argued that per exhibit “A” the area is a designated area for residential purposes including where the 3rd and 4th Plaintiffs and the 1st Defendant occupy. According to the Plaintiffs, the place currently being occupied by the 1stDefendant used to be occupied by one Kofi Quarshie and subsequently Abena Victoria who both used the property as their residence. The Plaintiffs did not call Kofi Quarshie and Abena Victoria but the Court has no reason to doubt that assertion of the Plaintiffs. The Plaintiffs attached photograph, exhibit “C”, the wooden structure that the 1st Defendant put up on the disputed area and according to them when they enquired from the 1st Defendant, its response was that it obtained permit from the 2nd Defendant, the Asunafo 16 NorthMunicipal Assembly toput upthe church and mission house onplot numbers80, 82 and 84 Block 1 Mim. The mission house is on plot number 84 and the church premisesis onplotnumbers80and 82. The Court takes notice that the 1st Defendant did not attach any permit to support its allegation that it obtained permit to put up a structure on the disputed land. The 2nd Defendant contends that records from its office indicate that the neighbourhood was not planned and the chiefs demarcated their own plots including the plots the Plaintiffs occupy. The Court holds a contrary view that the area is planned. Upon the Court’s perusal of exhibit “A” the Court finds a road from Mim township to Goaso. There are the Methodist and Pentecost churches, GCB Bank and amaternity home which arequite apart from the plots in dispute. It is useful to add that the church of Pentecost and the Methodist church are not strictly located within the disputed area and that these facilities showthat thearea isplanned. The 3rd Defendant, EPA per its evidence in chief put in as hearsay evidence by the Plaintiffs, told the Court that it did not permit the 1st Defendant to operate a church in the disputed neighbourhood. The evidence of the 3rd Defendant shows that it only got to know of the pending suit when it was served with the writ of summons and statement of claim. The 3rd Defendant contends that the Plaintiffs have no cause of action against it and that the Plaintiffs’ suit against it is incompetent. The 3rd Defendant 17 per its witness stated that it did not authorize the 1st Defendant to undertake its activities in the neighbourhood but it rather wrote to the 1st Defendant to produce documents permitting its church activities in a residential neighbourhood. The 3rd Defendant contends that apart from the 2nd Defendant it does not know the Plaintiffs and the 1st Defendant because it never met them nor dealt with them. It wrote to the 1st Defendant to produce the zoning letter or building permit when it got to know about the case but the 1st Defendant could not produce any document permitting activities and undertakings in a residential neighbourhood. On 13th January, 2021 it served the 1st Defendant with letter to halt its church activities marked as exhibit “EPA1”. Although the building permit the Plaintiffs tendered is incomplete the Court holds the view that considering exhibits “A” and “B” and the Plaintiffs long acts of possession and occupation of their disputed plots, their evidence alongside the evidence of the 1st Defendant on the preponderance of probabilities is more probable and weightier against the1stDefendant who could notproduce any permit. In an address filed on behalf of the Plaintiffs by their Counsel with reference to applicable authorities, Counsel submitted that the Plaintiffs mounted the witness box to prove their case by tendering exhibits “A”, “B”, “C” series, “D” series and “E” to prove their case. Counsel noted that exhibit “A” shows a well planned residential neighbourhood which the 3rd Defendant confirmed as a built up residential area upon its visit to the neighbourhood. The 1st Defendant did not produce anything to challenge 18 the neighbourhood as aresidential neighbourhood but only mounted the witness box to repeat its averments on oath. Counsel argued that the Plaintiff’s witness a specialist in noise measurement mounted the witness box and produced noise measurements while the 1st Defendant merely stated that it operates with minimal noise. Counsel noted that there was uncontroverted evidence of photographs showing flooding in the neighbourhoodwhichthe 3rdDefendant corroborated. Counsel contends that although pursuant to motion for interlocutory injunction the 1st Defendant was ordered by the Court to operate with minimal noise, the 1st Defendant flouted this order. Although the Ghana Standards Authority’s Guidelines on noise provides that noise in a residential area during the day should not exceed 55.0dB(A), exhibit “F” which was not objected to shows that noise generated from the 1st Defendant’s church activities is 85.9dB(A) that is an extra of 30.9 dB(A) more than the noise level permitted in a residential area. The noise level of 85.9dB(A) generated by the 1st Defendant is more than the noise level of 75.0 dB(A) permitted in commercial areas. Counsel underscored the health implications of noise on the Plaintiffs and stated that the 1st Defendant’s activities constitute nuisance and prayed the Court to abate it. Counsel noted that under Section 79 ofthe Local Governance Act, 2016 (Act 936), the 2nd Defendant is empowered to stop the nuisance and recover the cost from the 1st Defendant. Counsel prayed the Court for an order directed to the 2nd Defendant to remove the 1st Defendant’s foundation footing and the wooden church structure to 19 recover the cost from the 1st Defendant. In the alternative the Court may order the Plaintiffs toabate the nuisance and surcharge 1stand 2nd Defendants. This is anew relief. Iwill not grantit. This was not pleaded. Counsel contends that the 3rd Defendant is also clothed with capacity under section 2 of the Environmental Protection Agency Act, 1994 (Act 490) to stop the nuisance by demolishing the foundation footing. According to Counsel the 1st Defendant is operating the church without permit and by law the 3rd Defendant is empowered to order the discontinuance of an undertaking that fails to secure a permit. The 1st Defendant flouted the 3rd Defendant’s orders with impunity. Counsel contends that per Section 83 (1) (d) of Act 936 and Act 490 planning authorities shall not initiate and prepare District Development plans and settlement structure plans without the full participation of the local community. The Plaintiffs are entitled to damages because of the wrongful and illegal operation of the 1st Defendant in the Plaintiffs residential area. The 1st Defendant has also occasioned harm on the Plaintiffs by way of flood and the general well-being of the Plaintiffs. Counsel justified the Plaintiffs entitlement to cost indicating that the Plaintiffs spent 186.5 hours in prosecuting this four year suit, transportation expenses include airfares, Ghana Bar Association (GBA) scale of fees, processesfiled by the Plaintiffs among othersand prayedfor commensurate cost. The Court takes notice that Counsel for Plaintiffs sought to raise new reliefs for the Plaintiffs in his address but the Court would not succumb to that because the reliefs 20 were not pleaded and the address is not part of the evidence. The Court will therefore limit itselfto thePlaintiffs reliefs only. ISSUE1 Whether or not the 1st Defendant’s operations in the Plaintiffs’ residential neighbourhoodamountsto nuisance. The Plaintiffs particularized nuisance caused tothemby the 1stDefendant asfollows; 1.Excessive noise from the day and night church services has rendered it impossible to enjoypeacefuland quietoccupation ofthePlaintiffs’ respective properties. 1. The 1st Plaintiff was forced to temporarily relocate to Kumasi which affected her business. 2. The 3rd Plaintiff is aged and weak and the excessive noise from the 1st Defendant’s services makesit unbearable for her tostayin the property. 3. The Plaintiffs are unable to undertake routine and domestic activities such as preparation of lecture notes, hosting visitors, undertaking basic assignments, telephone conversations, normalmeetings withguestsetc. 21 The Plaintiffs also contend that the presence of the 1st Defendants wooden structure in the neighbourhood cause the neighbourhood to be flooded when it rained heavily. The Plaintiffs tendered photographs exhibit “C” series to substantiate their claim. The evidence shows that before the Plaintiffs commenced this action, they lodged a complaint about the 1stDefendant’sactivities in the neighbourhoodto the 2nd Defendant. The 2nd Defendant invited the parties to its premises and the parties agreed that the 1st Defendant will operate its church services with minimal noise. The 1st Defendant noted that it was resolved that it should not use microphones and drums during its morning devotions which the 1st Defendant agreed. Since then the 1st Defendant conducts morning devotions on Wednesdays without microphones and drums. It also conducts its Friday evening services between 7pm and 8:30pm and Sunday services between 10am and 12 midday at minimal noise level. The 1st Defendant contends that Christ Apostolic Church and Church of Pentecost operate within the neighbourhood and a corn mill so it finds it strange that the Plaintiffs are complaining about its church activities. From the above the Court is of a maximum conviction that the Plaintiffs’ case that the activities of the 1st Defendant posed nuisance to them is true. The fact that the 1st Defendant agreed to conduct its church services without microphones and drums attest to the 1st Defendants acceptance that its activities posed nuisance to the Plaintiffs. The question that bogs the Court’s mind is that for how long is the 1st Defendant going to 22 continue to remain in the neighbourhood to conduct its church services with minimal noise? Certainly, it cannot be forever. The Court takes notice that the 1st Defendant has not produced any document to confirm that it lawfully acquired plot numbers 80, 82 and 84 to construct a church premises, a mission house and to operate a church in the residential neighbourhood ofthePlaintiffs. The 1st and 2nd Defendants disputed the Plaintiffs’ claim that the neighbourhood is zoned for residential purposes and that operating a church in the neighbourhood does not constitute nuisance because other churches and a corn mill operate in the neighbourhood. It seemed strange to the 1st Defendant that the Plaintiffs are complaining about its church activities while other churches are located in the neighbourhood. It is true that a cornmill was operated in the neighbourhood but the Plaintiffs claim that the cornmill was relocated about two years ago. The Court’s view is that the operation ofa cornmill which the 1st Defendant is using to justify its presence in the neighbourhood has been relocated. The Churches that the 1st Defendant claims are in the neighbourhood are quite apart from the neighbourhood in contention upon careful perusal of exhibit “A”. The 2nd Defendant contends that records from its office indicates that the neighbourhood was not planned and the chiefs demarcated their own plots including the plots the Plaintiffs occupy. The Court holds a contrary view because exhibit “A” presents the neighbourhood as planned with a road from Mim Township to Goaso. A commercial Bank, Methodist Church and Pentecost Church and a Maternity 23 Home among others located quite apart from the Plaintiffs neighbourhood. It is useful to note that if the activities of the other churches pose nuisance to the Plaintiffs, they wouldhave sued the said churches as well. The Court takes notice that throughout its pleadings and evidence in Court the 1st Defendant could not produce any document to show its acquisition of the plots. The evidence of the 2nd Defendant also shows that it did not grant the 1st Defendant permit to operate a church in the neighbourhood. The 3rd Defendant also stated that it has not giventhe 1st Defendant environmental permit to operate achurch in the neighbourhood. Clearly from the evidence proffered by the 1st Defendant it could not produce any document by way of allocation note, site plan, building permit, receipts and environmentalpermit fromthe 3rdDefendant tosubstantiate itscase. The 3rd Defendant noted that on 13th January, 2021 it served the 1st Defendant with letter to halt its church activities marked as exhibit “EPA1”. It visited the neighbourhood and found that runoff water from the northern section was impeded by the 1st Defendant’s construction activities and that the construction activities of the 1st Defendant could be the cause of flood in the Plaintiffs’ neighbourhood when it rains. The 3rd Defendant contends that it has not permitted the activities of the 1st Defendant in the disputed neighbourhoodinany way as claimed by the Plaintiff. 24 The Plaintiffs on the other hand led sufficient evidence to show that they have lived in the said neighbourhood and occupied their respective plots on house numbers MAB/MM/152 and MAB/MM/153 without any interference until the 1st Defendant surfaced in the neighbourhood in June 2020. The Plaintiffs led further evidence that the activities of the 1st Defendant’s church posed nuisance to them. This was confirmed by the agreement between the Plaintiffs and the 1st Defendant at the instance of the 2nd Defendant for the 1st Defendant to operate his church services with minimal noise. The Plaintiffsengaged PW1 aPhysicist who measured the noise levelsinthe neighbourhood. He tendered his report which shows 11th, 12th and 13th June, 2021 but he submitted a report for Saturday and Sunday which in the Court’s view is sufficient. He monitored noise levels in the neighbourhood in dispute. His report exhibit “F” shows that the maximum noise generated by the 1st Defendant during church services is 85.9 dB(A) and that the noise level generated by the 1st Defendant’s church activities breaches the levels permitted by the 3rd Defendant in commercial areas at 78.8 dB(A) and 55.0 dB(A) in residential areas. According to PW1 the maximum noise level generated by the 1st Defendant breaches the levelspermittedby law. In an address filed on behalf of the 1st Defendant, Counsel for the 1st Defendant argued that since the 1stDefendant denied that the area has been zoned for residential purposes, the onus lied on the Plaintiff to prove otherwise. Also, the 2nd Defendant has stated that the area has not been planned. Counsel noted that exhibit “A” has a Pentecost Church, 25 Methodist Church, GCB Bank and Mim Town Road among others. Counsel argued that with all these commercial activities and churches operating in the area, the area cannot be said to have been zoned as a residential area. That PW1 admitted under cross – examination that there are other commercial activities in the neighbourhood which corroborates the 1st Defendant’s claim that the area has not been zoned as a residential neighbourhood. Counsel stated that it is not stated anywhere in exhibit “B” that the permit was being given for an area zoned for residential purposes. Counsel contends that both exhibits “A” and “B” bear the name Philomena Oppong Fosu but the Plaintiffs’ writ bears the name Philomena Anyankwa. Counsel contends that the 1st and 2nd Plaintiffs failed to lead satisfactory evidence that their properties are situated in a purely residential area which is fatal to their case. Counsel prayed the Court to resolve this issue against the Plaintiffs. Counsel for the 1st Defendant on whether or not the 1st Defendant’s activities amounted to nuisance noted that the Plaintiffs engaged a private person to measure the noise levels when they well knew that it is the 3rd Defendant that is mandated to do so. Counsel argued that the report is not reliable because although PW2 claimed he did the measurements on 11th, 12th and 13th June, 2021, he only captured the report for Sunday 13th June, 2021. Counsel contends that the noise being generated did not come from the 1st Defendant’s activities alone since noise in the background also influences results. Counsel argued that the neighbourhood is a commercial area which lies in the heart of 26 Mim so the noise level there cannot be attributed to the 1st Defendant alone. Counsel argued that the 1st Defendant has not committed nuisance as claimed by the Plaintiffs. That exhibit “F” is self - serving and the Court should treat it as such and that its credibilityis indoubt. According to Counsel the Plaintiffs did nothing to prove that the flooding in the neighbourhood was caused by the 1st Defendant’s wooden structure. Counsel says the 3rd Defendant’s claim that their investigations revealed that the flooding was caused by the 1st Defendant’s structure was not proved because flooding could be caused by many factors and the pictures being undated raises doubt about when they were taken. Counsel argued that the 1st and 2nd Plaintiffs failed to prove that the area is zoned for residential purposes and they woefully failed to establish that the 1st Defendant’s actions amounted to nuisance. Counsel argued that the 1st Defendant did not need to acquire permit or license to operate a church and therefore the Plaintiff’s reliefs (d) and (e) are empty. He prayed the Court not to make a vague and unenforceable order. Counsel argued that inconsistencies regarding a letter the Plaintiff’s claimed to have served onthe 2nd Defendant of its intention tocommence the action have different dates, the reliefs do not correspond and it is not certain which letter was served on the 2nd Defendant. Counsel prayed the Court to dismiss the Plaintiff’s reliefs since they have notledcredible evidence to establish same. 27 Counsel for the 1st Defendant did not raise objection to the name Philomena Oppong Fosu on exhibits “A” and “B”. As stated earlier the Pentecost church, Methodist church, GCBBank and maternity home are quite apartfrom theneighbourhood ofthe Plaintiffs. Besides the 1st Defendant’s structures are located within the neighbourhood not as captured in exhibit “A” where one can clearly see the churches and banks quite apart from the neighbourhood. The Court holds a contrary view that although the 1st and 2nd Plaintiffs engaged aprivate personto measure the noise levelin the neighbourhoodand tendered only the report for Sunday, the Court has no reason to doubt the report which was admitted without objection by Counsel for 1st Defendant and the Court will therefore accept it. The Court further reiterates that the neighbourhood is not a commercial area but a residential area. The Court is of the view that regarding the flooding alleged to have been caused by the 1st Defendant’s structure, the photographs are sufficient. The Court has no reason to doubt the said photographs although they are notdated. In the case of Mrs. Patricia Bannerman & Dr. Elizabeth Masopeh vs. International Central Gospel Church (ICGC), Cross Road Community Church Ministries & The Municipal Chief Executive Suit No. AP 56/2014 Dated 21st January, 2019 the Court held asfollows; 28 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 a cluster of churches in 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 acquiringproperties in the areaknow or ought to knowwhat to expect. In this case the EPA conducted the assessment of noise levels and found that the noise levels have a minimum of 76 dB(A) and a maximum reading of 86 dB(A). The EPA indicated that its day time ambient permissible noise level for residential area was 55 dB(A). The Court found in that case that the noise was above permissible levels. In the light of the foregoing, the Court holds the view that based on the maximum noise level of 85.9 dB(A) established by PW1 and in consideration of the above case, the Court concludes that the 1st Defendant’s activities in the neighbourhood poses nuisance to the Plaintiffs. Even without the measurements of PW1, the fact that the 1st Defendant agreed with the Plaintiffs and the 2nd Defendant to operate at minimal noise level establishesthe fact that their activitiescaused nuisance tothe Plaintiffs. 29 ISSUE3 Whetheror notthePlaintiffs areentitled to their claims in thesuit. Plaintiffs’ relief (a) An order for the 1st Defendant to cease its services which is causing a nuisance in the Plaintiff’s residentialneighbourhood. In the light of the foregoing and the Court having established that the 1st Defendant’s church activities poses nuisance to the Plaintiffs, the Court hereby orders the 1st Defendant to cease itsservices inthe Plaintiff’s residentialneighbourhood forthwith. Plaintiffs’ relief (b) An order directed at the 2nd Defendant to remove any authorization granted to the 1st Defendant inviolation of the relevantlawand procedure forprocuring such authorization. Regarding the Plaintiffs relief (b) the Court did not find on the evidence led by the 2nd Defendant that it authorized the 1st Defendant to cite its church in the neighbourhood and therefore, there will be no need to make such an order against the 2nd Defendant as prayedby the Plaintiffs. 30 Plaintiffs’ relief (c) An order of perpetual injunction restraining the 2nd Defendant from unilaterally changing the residential status of the Plaintiffs’ community or rezoning same without the full participation of the local community. Rather than restrain the 2nd Defendant perpetually which is a government institution, the Court would rather order the 2nd Defendant that should the need arise for the residential status of the Plaintiffs’ community to be changed or rezoned it should be done with the full participation of the local community which the Court believes that Assembly members in the local communities as representatives of the local people may participate insuch decisions onbehalf ofthe people/localcommunity. Plaintiffs’ relief (d) An order directed at the 3rd Defendant to revoke any authorization granted to the 1st Defendant inviolation of the relevantlawand proceduresfor procuringsuch authorization. The Court declines to make an order against the 3rd Defendant because the evidence before the Court shows that the 3rd Defendant has not authorized the 1st Defendant’s church activities in the neighbourhood in violation of any law or procedure for procuring authorization. 31 Plaintiffs’ relief (e) An order of perpetual injunction restraining the 3rd Defendant from unilaterally permitting the noisy activitiesof the 1st Defendantwithout fullparticipation of the local community. This relief is hereby declined because the evidence does not show that the 3rd Defendant unilaterally permitted the noisy activities of the 1st Defendant without full participation of the local community. Rather the 3rd Defendant wrote a letter to the 1st Defendant to cease its activitiesinthe neighbourhoodwithout producing apermit tothateffect. Plaintiffs’ relief (f) General damages Having established that the activities of the 1st Defendant poses nuisance to the Plaintiffs which deprived the Plaintiffs of their peaceful enjoyment of their neighbourhoodand upon taking intoconsideration thatthe 1stDefendant is achurch, I hereby award the Plaintiffs general damages of Thirty Thousand Ghana Cedis (GHs 30,000.00) againstthe 1st Defendant. 32 Plaintiffs’ relief (g) Plaintiff’s costand legal feesfor these proceedings on fullrecoverybasis Having taken into consideration the length of the trial, adjournments, processes filed by the Plaintiffs, reasonable transport expenses borne by the Plaintiffs, cost awarded in favour of the Plaintiffs during the trial, the fact that the Plaintiffs engaged Counsel to prosecute the case on their behalf throughout the trial, taking into consideration reasonable expenses borne by the Defendants, I hold the view that the Plaintiffs are entitled to cost. After hearing Counsel for 1st Defendant, I hereby award cost of Twenty Thousand Ghana Cedis (Ghs 20,000.00) in favour of the Plaintiffs against the 1st Defendant. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 3RDDECEMBER 2024 33