Division: IN THE HIGH COURT, ACCRA
Date: 30 July 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
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.
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.
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.
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 and perhaps convincing evidence in favour of the plaintiffs came from Dr. Beausoleil, an employee of the Central Government who is attached to the National Malaria Service as a senior medical officer. This doctor does not reside in the area but gave evidence after he had
conducted an inspection of the quarry, the methods used in tipping the refuse and the dangerous effects of the improper methods applied by the council. He was of the opinion that the smell, the exposed refuse, the flies and the mosquitoes were all dangerous to good health and mentioned a series of tropical diseases which might spread in the area resulting in epidemics which might not be arrested timeously. Dr. Beausoleil’s qualifications as a medical practitioner, his official visits to various foreign countries, the experience he acquired during these visits and the nature of his present assignment by the Ghana Government have convinced me that his evidence should be treated with the greatest respect; and as his evidence supports very strongly the evidence of the three previous witnesses for the plaintiffs, to which I have already referred, I find that the smell and stench, the increase in the number of flies and mosquitoes, and the presence of vultures have been caused by the dumping of the refuse in the quarry. I also find that the smell or stench from the quarry constitutes a nuisance to the plaintiffs.
The defence of the council was that it had acted under statutory authority and therefore could not be held liable for any nuisance caused by its actions. The council relied on section 47, subsection (2), and section 48 (1) (e) of the Local Government Act, 1961, and also on section 3 (1) and (2) of the Mosquitoes Ordinance of the laws of Ghana. [His lordship then quoted section 47 (2) and paragraphs 8, 10 and 15 of the First Schedule. to the Local Government Act, 1961, as set out in the headnote and continued:] Section 48 (1), which I shall not quote in extenso, provides that a city or municipal council shall be the authority within the administrative area for the carrying out of the provision of certain enactments including the
Mosquitoes Ordinance; and sub-section (2) of section 48 provides that the Medical Officer of Health for the administrative area shall be the sanitary authority for the purposes of the Mosquitoes Ordinance, section 3 (1) of which enables the Medical Officer of Health to enter upon any premises between the hours of 6 a.m. and 6 p.m. to destroy any mosquito larvae that may be found there and to render any accumulations of water on such premises temporarily unfit to be breeding places for mosquitoes. “Premises” is defined in section (2) to include ““messuages, buildings, lands, easements, and hereditaments of any tenure, whether open or closed, whether built on or not, whether public or private, and whether maintained or not under statutory authority.”
The plaintiffs did not challenge the right of the council to dump the refuse in this quarry and it is irrelevant to consider whether the licence of the landowner was obtained to dump the refuse into the quarry. However in order to disprove the allegation of nuisance, the council brought Dr. John Bruce Stafford, the Medical Officer of Health, seconded to the Accra City Council, who after digressing on his malaria campaigns in jute factories and tea plantations in India and Burma, referred to his mosquito’s resistance experiments in Northern Nigeria and finally to his present engagement in Ghana. In his evidence, he explained that the council was filling in the quarry on the advice of one Dr. Kellard, the previous Medical Officer of Health, now in England on retirement; that since his secondment to the Accra City Council, he had visited the quarry several times and had approved of the measures taken in dumping the refuse into the quarry by covering the refuse with earth and spraying it with insecticide. In examination he revealed that the main object of filling in the quarry was to get rid of the mosquitoes in the area. By this statement, I take it to mean that he was exercising his powers and duties under the Mosquitoes Ordinance. But that was not the only object. Dr. Stafford mentioned other reasons for filling
up the quarry. In his opinion the quarry was about fifteen to twenty feet deep and was a danger to children specifically. Also the ground or base of the quarry was impervious and as there was no suitable drainage system, the possibility of the quarry over-flooding during heavy rainfall and covering the village of Tesano down hill could not be ruled out. Also Tesano was a developing area and these quarries which kept on yawning at residents in the area must be filled up. Dr. Stafford agreed that there were standard and orthodox methods in filling such pits and quarries but he thought that the condition of this particular quarry made it impossible for the council to apply the standard and orthodox methods and he could not think of any other method of filling this quarry. However he had arranged with the Ghana National Construction Corporation to supply earth dug during the construction of drains and this earth was used in covering the refuse daily. The court heard the evidence of Dr. Beausoleil, before that of Dr. Stafford, but it seems that the two pieces of evidence by these two doctors on methods are diametrically opposed. Dr. Beausoleil who, before giving his evidence, had visited the site was emphatic that what was being done at the quarry was contrary to the rules of “tipping” as known in the medical field and he observed that since tins likely to breed mosquitoes were not covered, the tipping was not properly being done because at the end of each day the refuse was not properly sealed, hence the cause of the smell and the presence of flies and mosquitoes. He also stressed that as the quarry was in a built-up residential area, what was being done was not healthy for the residents in that area and concluded that the present state of the quarry was more injurious to health than the former state when it was only filled with water and that the smell and the flies (which could spread various diseases) and the exposure of the refuse were not conducive to good sanitation. Dr. Beausoleil is an independent witness, a Senior Medical Officer from the Ghana National Malarial Service, whereas Dr. Stafford is an officer of the council and I would in the circumstances prefer the evidence of Dr. Beausoleil to that of Dr. Stafford who must naturally exonerate or exculpate not only the council but also himself. Dr. Stafford in the course of his testimony, mentioned that he was working in close collaboration with a Dr. Burton, a World Health Organisation specialist now attached to the Ministry of Health in Accra. He also mentioned that he was discharging his duties in co-operation with
Dr. Gillman of the National Health and Medical Research Institute. One should have thought that with such medical luminaries available, Dr. Stafford would have advised the council to invite these two gentlemen to inspect the quarry and possibly give evidence for the council. But the council preferred to launch their own medical officer as their sole witness. Another remarkable aspect of this case is that at the end of the addresses by counsel, Mr. Laing, counsel for the council, invited the court to visit a filled up quarry at Accra New Town. The court declined the invitation because if there was any locus in quo to be inspected, it was the quarry at Tesano and not any other locus. However Mr. Laing did not think it necessary for the court to inspect the Tesano quarry and I can only conclude that at the time either he had not wanted the court to verify the truth or very rightly and politely thought the court should not take chances with the smell and stench, the flies and mosquitoes at the quarry. In his address, Mr. Laing relied on the case of Harrison v. Southwark and Vauxhall Water Company,3 and pointed out that although the council had been given powers under the Local Government Act to do what they were doing at the quarry, the Local Government Act and the Mosquitoes Ordinance did not lay down the manner in which the works were to be executed and therefore the council had a discretion in the matter. I have read the judgment of Vaughan Williams J. (as he then was) in that case very carefully and the following passage appears4:
“The statute has undoubtedly authorised the work, but what has it authorised in respect of the manner of execution? The Plaintiff says that the statute has authorised the work together with all things absolutely necessary for the execution thereof. I think not. I think that the statute has authorised the execution of the work together with all things reasonably necessary for the execution thereof . . . So far as the manner of execution is concerned, all that is necessary is that the works should be done with as little annoyance and damage as can be—that is, as reasonably can be.”
This passage does not help the council. Mr. Laing further submitted that once the power has been granted the council is not liable for any mischief caused by its acts. He referred to a passage in the judgment of Kekewich J. in the case of the National Telephone Company v. Baker which reads5:
“The Defendants are expressly authorised to use electrical power, and the Legislature must be taken to have contemplated it, and to have condoned by anticipation any mischief arising from the reasonable use of such power.”
In that passage too, I find that the words, “use of such power,” are preceded and qualified by the word “reasonable” which is of great significance in deciding this matter. The case of the London Brighton and South Coast Railway Company v. Truman6 was also relied on by the council, who further submitted that on the basis of that decision, once the council proved that it acted or was acting under statutory powers and was authorised to do what it was doing, the council was not bound to choose a site more convenient to other persons, and that the plaintiffs who were adjoining occupiers were not entitled to an injunction to restrain the council. The decision in that case was pronounced by the House of Lords and must be treated with the greatest respect. But at the same time, if one looks at the history of the special Railway Acts
passed in the nineteenth century by the United Kingdom Parliament, one would appreciate that there was considerable opposition by private persons to these acts; but the courts managed to give effect to these acts by refusing to grant injunctions in almost all these cases. This observation is supported by a passage I have found in the judgment of Kekewich J. in the National Telephone Company’s case7:
“The Defendants’ authority is derived under a provisional order confirmed by Act of Parliament. Such provisional orders in connection with tramways and many other undertakings of a public character are now common, and, I think, must be treated as ‘a well-known and recognised class of legislation’ equally as much as the Railway Acts, . . . The Railway Acts . . . were assumed to establish the proposition that the railway might be made and used whether a nuisance were created or not . . .”
As the Truman case (supra) was one decided with a special class of legislation in mind, I do not think it helps the council very much. I cannot find any provision in the Ghana Local Government Act or the Mosquitoes Ordinance to the effect that the municipal council is entitled to exercise its statutory powers whether a nuisance is created or not.
The council also relied on a decision of the Judicial Committee of the Privy Council in Canadian Pacific Railway Company v. Roy.8 I think that case can be distinguished on the ground that it was one of the railway cases decided in the spirit in which the English courts were deciding this class of cases. Secondly in that case it was held that a railway company authorised by statute to carry on its railway undertaking in the place and by the means adopted is not responsible in damages for injury not caused by negligence, but caused by the ordinary and normal use of its railway, and therefore, the appellants were not held liable for damage caused by sparks escaping from one of the appellants’ locomotive engines while employed in the ordinary use of its railway. In other words, a locomotive engine could not be used as expressly authorised by Parliament without emitting sparks from its engine and in such cases no action could be maintained against the railway company.
Finally, the council cited the case of the Mayor and Cofincillors of East Fremantle v. Annois,9 a decision of the Judicial Committee of the Privy Council. In that case it was held that the respondent was without remedy when the corporation, in exercise of the powers conferred on it by statute, reduced the gradient opposite the respondent’s house, so that it was left on the edge of a cutting with a drop of about six or eight feet to the road. The Judicial Committee were of the opinion that since no remedy had been given by statute, and the appellants had not exceeded the powers conferred, the respondent was without remedy. Lord Macnaghten who delivered the judgment, enunciated the law in the following words10:
“The law has been settled for the last hundred years. If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action. He is without remedy unless a remedy is provided by the statute.”
From this passage, it is obvious that their Lordships expected the work to be done in a proper manner and what I have to decide in this case is whether the tipping of the refuse has been properly done. In this respect we have the evidence of Dr. Stafford and that of Dr. Beausoleil and I have already indicated which of the two contradictory pieces of evidence is preferable and worthy of credence.
The stratum of the defence of the council is briefly that the statute has authorised, in imperative terms, what it has been doing and therefore the plaintiffs’ action is not maintainable. There is no express provision in the Local Government Act, 1961, or the Mosquitoes Ordinance, which authorises the council to commit nuisance. As the intention of the legislature cannot be ascertained, except by a true and proper construction of the statutes concerned, I have decided to refer to a passage in the judgment of Lord Blackburn in the Truman case11:
“I do not think there can be any doubt that if on the true construction of a statute it appears to be the intention of the legislature that powers should be exercised, the proper exercise of which may occasion a nuisance to the owners of neighbouring land, and that this should be free from liability to an action for damages, or an injunction to prevent the continued proper exercise of these powers, effect must be given to the intention of the legislature.”
The same learned judge, Lord Blackburn, re-iterated this principle in Metropolitan Asylum District Managers v. Hill12:
“I think that the case of The Hammersmith Railway v. Brand, Law Rep. 4 H.L. 171, in your Lordships’ House, settles beyond controversy, that where the Legislature directs that a thing shall at all events be done, the doing of which, if not authorized by the Legislature, would entitle any one to an action, the right of action is taken away.”
In the present case, I cannot find any provision in the statutes relied on by the council which expressly authorises them in mandatory terms to fill up all quarries in Accra with refuse. The statutes empower them to eliminate mosquitoes and to collect and burn refuse. The statutes do not authorise them to dump refuse anywhere and by all means so as to interfere with private rights. Lord Watson in the Hill case put it this way13:
. . . I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two propositions—in the first place, that such are the imperative orders of the Legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the Legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is sufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the Legislature has directed it to be done.”
I have applied these tests laid down by Lord Watson although I realise that the statutory powers in that case were permissive only and not mandatory and I am satisfied that the council has failed to discharge the onus by adducing evidence to show that the smell, the flies, the increase in mosquitoes, that is, the factors in the nuisance alleged, are the inevitable result of carrying out the mandatory provisions of the two statutes. The evidence of Dr. Beausoleil is clear that if proper steps had been taken, the smell would not have been created, and possibly, the flies and mosquitoes would have had no opportunity of multiplying their numbers.
But assuming that the tests laid down by Lord Watson are inapplicable in this case, can the council justify this nuisance on any other legal ground? I think not. The case of the Hammersmith and City Railway Company v. Brand14 and Truman case (supra), establish that where a statute has authorised the doing of a particular act or the using of land in a particular way, which act or use will inevitably cause a nuisance, all remedy is taken away provided every reasonable precaution consistent with the exercise of the statutory powers has been taken to prevent the nuisance occurring. The burden of proving that a nuisance is inevitable lies
on the persons having statutory authority. As I have already said the council has failed to discharge this burden. The cases of Geddis v. Bann Reservoir Proprietors15 and Quebec Railway v. Vandry,16 also establish that in order to rely on statutory authority to commit nuisance the party relying on the statute must show that the statutory authority is express or necessarily implied. The Ghana statutes relied on by the council contain, no express provision to commit nuisance. Nor can it be necessarily implied from any provision in those statutes that the council is entitled to collect and dump refuse anywhere, be it in a residential area or not; and whether or not a nuisance is thereby caused.
My view is that by choosing a quarry only a few yards from a residential area and by dumping in refuse without proper steps being taken to prevent the nuisance caused to the plaintiffs, the council has acted unreasonably. And on this ground I can find authority in Roberts v. Charing Cross, Euston and Hampstead Railway Company17 and Howard-Flanders v. Maldon Corporation18 The council has no incinerator and according to Dr. Stafford in his evidence, so long as there are quarries and holes in Accra he will continue to fill them. No one will quarrel with Dr. Stafford’s determination and ambition; but the ordinary man expects that these other quarries in the Accra area should be filled properly and that reasonable steps should be taken to avoid causing annoyance to nearby residents. Perhaps those living near the Asylum will take consolation from Dr. Stafford’s assurance that the quarry near the Ridge Hospital will be exempt from the exercise because, in his own words, “it will be impossible to fill it.” At this juncture I wish to remind the council of the words of Viscount Sumner in The City of Manchester v. Farnworth19:
“It must be remembered that, in making reasonableness the measure of what must be done before the production of a nuisance can be excused, the law, as it always does, means reasonable according to all the circumstances, and reasonable not only in the interest of the undertakers but also in that of the sufferers. The Legislature in authorizing a very great concern must not be taken to be chary of requiring that great care is to be taken. Great powers often involve great responsibilities and before the defendants can be said to have proved that they have done all that they reasonably can, I think that they ought to have done a good deal more than they have done to find out what can usefully and reasonably be done.”
It may be said that, as Dr. Stafford has testified, the smell has ceased and that the quarry will be filled completely very soon and therefore a mere temporary interference with the comfort of the plaintiffs should not be actionable. Nevertheless, the law is that a temporary interference which is substantial is an actionable nuisance. The evidence of Dr. Beausoleil confirms the serious state of affairs which is not only injurious to good health but has also caused inconvenience, annoyance and discomfort to the plaintiffs who live in a strictly residential area where one would expect purity of air; and in the words of Knight Bruce V.C. in Walter v. Selfe20:
“. . . not necessarily air as fresh, free and pure as at the time of building the Plaintiffs’ house the atmosphere there was, but air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence, a phrase to be understood of course with reference to the climate and habits of England.”
The same learned Vice-Chancellor reminds us21 that the discomfort must be “an inconvenience
materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple motions among the English people?”
When considering my judgment I had hoped to rely. on the doctrine of misfeasance by local authorities but the myth in the difference between non-feasance and misfeasance has been exploded by the Court of Appeal in the case of Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese, Ltd., where Denning L.J. (as he then was) stated as follows22:
“. . . the distinction between misfeasance and non-feasance is valid only in the case of highways repairable by the public at large. It does not apply to any other branch of the law. I am well aware that in 1924, in Hesketh v. Birmingham Corporation [1924] 1 K.B. 260, 271, Scrutton L.J. said that ‘The general rule is that a local authority is liable for misfeasance, but not for non-feasance’, but when he said that, I fear that for once Homer nodded.”
I have therefore not considered it proper to consider the doctrine of misfeasance in arriving at my judgment.
My findings are that: (1) the smell and the vapours emanating from the refuse being dumped in the quarry constitute a nuisance to the plaintiffs; (2) the Local Government Act, 1961, and the Mosquitoes Ordinance, do not authorise the Accra City Council to commit or create a legal nuisance; and (3) the action by the plaintiffs is maintainable because the council has exercised its statutory powers improperly and unreasonably.
I have now to consider whether the plaintiffs should be granted the reliefs sought, namely, damages and an injunction to restrain the defendants from continuing the nuisance. I shall first of all deal with the injunction sought and in doing so I wish to refer again to the Pride of Derby case where Romer L.J. stated as follows.23
“Sir Andrew Clark, in the course of his argument before us on this point, said that he was prepared, if necessary, to contend that no injunction should ever be granted against a local authority by reason of the public services which it is their duty to render. If that contention were to be accepted, the result would be not only to confer on local authorities a privilege which is enjoyed by no other section of the community, but one which, so far as I am aware, has never been accorded by the courts to any person or body of persons since the equitable remedy of injunction was devised. For my part, I am quite unable to accept the contention, and can find no possible warrant for it. Anyone who creates an actionable nuisance is a wrongdoer, and the court will prima facie restrain him from persisting in his activities. If special circumstances be shown, the court may leave the injured party to his remedy in damages, but, in my judgment, the mere fact in itself that the wrongdoer is a local authority (however important) has never been, and ought not now to be, regarded as a circumstance of this character. Local authorities have great and important duties to discharge, and the court, in deciding what order it should
make, would undoubtedly take those duties into consideration, and would no more make an order that was virtually impossible for an authority to perform than it would order a private individual to perform an act which it was not in his power to do.”
This passage has influenced me in my decision not to grant the injunction for the following reasons. First of all, Dr. Stafford the Medical Officer of Health, in his evidence, assured the court that the quarry would be completely filled by the middle of this month and I hope that the quarry has been filled and that to some extent the nuisance has been abated. Secondly, I have borne in mind the possible repercussions of a decision to grant the injunction. In his evidence Dr. Stafford revealed that the Accra City area had never boasted of a proper refuse disposal system and although about 40,000 tons of refuse were collected everyday in the city, there was no incinerator for the scientific disposal of refuse collected, and that, until an incinerator was installed, the city council intended to use other disused and open quarries for the disposal of refuse. I am quite sympathetic to the plight of the council and I only hope that whenever they
decide to fill other quarries in the city with refuse, adequate and proper steps will be taken to avoid creating a legal nuisance. My third reason is that if the injunction were granted, all the citizens in Accra will be up in arms against the council and there will be not only a multiplicity of actions but an infinity of applications for injunctions to abate the smells in certain parts of the city. The market women will seek redress to prevent the stench from the open storm drains near the markets, residents in certain areas (I do not wish to name them lest I may offend the susceptibilities of the residents in these areas) will seek an injunction to abate the smell from nearby public lavatories; and, of course, Korle Gonno will strive hard for the removal of that
ancient citadel by the sea. I am also not oblivious of the possible action on the part of pedestrians in Accra who will seek to prevent the council for bismearing the streets at night with the excrementitious gravy with urinal sauce which oozes out from the loose corners of the conservancy trucks on to the streets. Indeed, there will be chaos. Ghana is a developing country with methods of sanitation still in the process of improvement. The present state of affairs can be regarded only as a legacy from the colonial government and I think it is the duty of the courts to take judicial notice of these salient but sordid facts when considering such applications. Legal remedies which may be appropriate and effective against local authorities in developed countries may not necessarily achieve their purpose when dealing with local authorities in developing countries with very limited resources, lack of personnel and modern equipment. These are compelling reasons and I think the injunction should not issue.
As regards damages, learned counsel for the plaintiffs correctly suggested nominal damages only. I am convinced that the plaintiffs are not interested in any monetary awards. But I think it would not be out of place to point out to them, on their own admissions in their evidence, that the refuse being tipped into the quarry includes also refuse collected from all the houses or bungalows on the C.F.C. Estate including that of the plaintiffs and it is not illogical to conclude that the smell from the quarry emanates partly from the refuse collected and deposited there by the first plaintiffs. In his evidence Mr. Donald John James for the first plaintiffs explained that the Medical Officer of Health had prevented them from using their own incinerator. This is not a case of negligence but common sense dictates that if damages are awarded in this case they should be not only nominal but also negligible. I therefore award to each of the three plaintiffs
the sum of 8s. 5d. damages which is equivalent to one cedi and one pesewa to be collected from the council in July, 1965. I wish to emphasise that I have not based my decision on any grounds of public policy, a term which is incapable of definition as the well-known dictum of Burrough J. in Richardson v. Mellish goes, “public policy;—it is a very unruly horse, and when once you get astride it you never know where it will carry you.”24 I have decided on the course I have taken simply by virtue of the current needs of the community in contemporary Ghana. It is my hope that the council will adopt the scientific methods clearly propagated by Dr. Beausoleil in his evidence-a witness who is employed by the Central Government in the National Malaria Service and who in no mistaken terms condemned the methods now being used by the council in tipping refuse.
My decision not to grant the injunction and my award of negligible damages may disappoint the plaintiffs but I wish to console them with a passage from a poem by William Wordsworth which runs:
“Its my faith that every flower
Enjoys the air it breathes
The budding twigs spread out their fan
To catch the breezy air
If this belief from Heaven be sent
Have I not reason to lament
What man has made of man?”
The Accra City Council may think my decision, is quite innocuous but I wish to remind the council that it has a mandatory duty by statute, i.e. paragraph 10 of the Part 1 of the First Schedule to the Local Government Act, 1960, to which the council has already referred in its defence, to prevent and abate nuisances which may be injurious to public health and the nuisance which I have found in this judgment is one of them. Although no individual may take legal steps to enforce this duty, the council should bear in mind that at common law an individual can maintain an action against the council for nuisances created by the acts of the council itself. I therefore grant the plaintiffs liberty to apply after the period six months, for an injunction, if at the expiration of that period the nuisance still prevails.
100 guineas costs to plaintiffs.
DECISION
Order accordingly.
T. G. K.
