C.F.C. CONSTRUCTION COMPANY AND OTHERS vs. ACCRA CITY COUNCIL [1964]DLHC1886

Date	1964-07-30
Suit No.
Citation No.	[1964]DLHC1886

ARCHER J.

J. B. QUASHIE-IDUN FOR THE PLAINTIFFS.

HAMMOND-LAING FOR THE DEFENDANTS.

[1964]DLHC1886
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													<main id="main" class="content" style="min-height: 60rem" >C.F.C. CONSTRUCTION COMPANY AND OTHERS <o:p></o:p>vs. <o:p></o:p>ACCRA CITY COUNCIL <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 496<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 July 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. B. QUASHIE-IDUN FOR THE PLAINTIFFS.<o:p></o:p>

HAMMOND-LAING FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The plaintiffs
in this suit claim (1) damages and (2) interim injunction to restrain the
defendants, their servants or agents, from the countinuance or repetition of
the nuisance being committed by them in dumping garbage and refuse alongside or
near the plaintiffs’ property or the committal of any nuisance of a like kind
in respect of the said property.<o:p></o:p><o:p>&nbsp;</o:p>The first
plaintiff, the C.F.C. Construction Company (West Africa Limited), is the
sub-lessor of numerous houses on the C.F.C. residential estate, Tesano, Accra
which it has leased to various sub-lessees including the second and third
plaintiffs. The first plaintiff is also an occupier of several houses on the
same estate. The gist of the case of the plaintiffs is that from the
commencement of the month of April 1964, up to the date of issuing of the writ
of summons, the defendants (who I shall henceforth refer to as the council)
have constantly caused offensive and pestilential smells and vapours to come
into and be on and about the said C.F.C. estate whereby the dwelling house of
the three plaintiffs have been rendered unhealthy and unfit for habitation. The
smells and vapours according to the plaintiffs are caused by and come from the
dumping of garbage and refuse by the council in an open quarry adjoining the
said C.F.C. estate and the nuisance thereby caused is especially objectionable
during the hours of darkness and as a further result, the area is now infested
with vultures.<o:p></o:p><o:p>&nbsp;</o:p>The
council denies that it has caused any nuisance and maintains that the dumping
of the refuse was done on the advice of the Medical Officer of Health with the
object of abating a public nuisance; and further contends that the acts
complained of were operations undertaken by the council under the statutory
authority conferred on the council by sections 47 (2) and 48 (1) (e) of the
Local Government Act, 1961,1 and by section 3 (1) and (2) of the Mosquitoes
Ordinance2 of the laws of Ghana; and, as such, the action is not maintainable
and the plaintiffs are not entitled to the reliefs claimed.<o:p></o:p><o:p>&nbsp;</o:p>In view
of the defence put forward, I shall first of all consider whether any nuisance
has been caused by the acts of the defendants, and, if so,, whether an action
can be maintained against the council. The legal concept of nuisance is not
capable of being defined with exactitude and hence textbook writers and judges
aware of this impossibility, have consistently refrained from placing any
precise meaning on the word in view of the fact that before the courts decide
whether or not an action for nuisance is maintainable, the courts subject their
thoughts to a variety of considerations and a balance of conflicting interests.
The decided cases on nuisance are in abundance, but some of them seem to
establish that any interference with one’s enjoyment, one’s tranquility, one’s
personal liberty, convenience or comfort provided the degree of interference is
sufficiently serious, constitutes an actionable nuisance. The plaintiffs, who
are occupiers of premises adjoining the quarry where the refuse is being dumped
by the council, maintain that the smell or the stench emanating from the refuse
has seriously interfered with their comfort and well-being. In proof of this
interference, Mr. A. C. Kuma, a tenant and occupier who lives in one of the
houses on the C.F.C. estate, about 200 yards from the quarry, recounted his
experiences since the smell and stench commenced to invade the comfort of
himself and his family. He testified as to the increase in the battalion of
flies and mosquitoes in the area and his burning of incense to partially
neutralise the full effects of the smell. He also mentioned that as a result of
the stench, he and his family suffered in health and were constantly under the
medical care and attention of his wife—a medical practitioner. The court also
heard Mr. Edward Irwin, a construction engineer employed by the third
plaintiff, Dorman Long (Ghana) Ltd. He narrated his experiences in similar
terms and added that he and his family had stomach-upsets and were obliged to
eat their meals in an air-conditioned room. Although this witness had lived
there for three and one-half years, he did not see so many mosquitoes until the
council started dumping the refuse in the quarry. He stated that his residence
is less than 100 yards from the quarry. In further proof of the nuisance, Mr.
Donald John James, the General Manager of C.F.C. Construction Co., the first
plaintiff, also revealed his changed mode of living since the smells started.
He went to bed very early and could not sit in the living room and took no
breakfast in the house. This witness also stated that as a result of the smells
some tenants had vacated the estate and unless something was done there would
be a large exodus of tenants from the estate with grave financial consequences
to the first plaintiff the sub-lessors. Although the narratives of these three
witnesses may be exaggerated in some respects, I have no reason to doubt their
sincerity and integrity in this matter. But the most damaging a</main>