What Landowners resisting the building of Masts in their Residential Areas through Litigation ought to know. 

Governments across the world seek to improve telecommunication infrastructure to provide high-speed broadband services to their citizens. Various jurisdictions, including Ghana, leave the building of telecommunication infrastructure to private companies with supervision from the regulator of the telecommunication industry. In recent times, building of telecommunication masts in Ghana in residential areas has been met with resistance from owners of adjoining lands, leading to court actions on several reasons such as alleged harmful radiations and the collapse of masts. 

Background

In Conduah v Scancom Limited [2013-15] 2 GLR 765, the High Court in Sekondi was invited to injunct the construction of a telecommunication masts within a residential area in Sekondi and award damages for private nuisance. The plaintiff, a hotelier, apprehensive of the siting of a telecommunication mast close to her hotel business commenced the action against the defendant to restrain the building of the telecommunication masts on the grounds that it posed real danger to her health and safety, and that of other residents, as the mast was likely to collapse, among others. The plaintiff further contended that the distance from the base of the mast to the fence of her property was less than 20 metres and in breach of the Guidelines for the Deployment of Communication Towers (‘GDCT’).

The defendants denied plaintiff’s allegations and contended that the mast was built in accordance with international safety standards domesticated, approved and certified by the relevant state institutions in accordance with national laws and regulations in the telecommunications industry. 

The court set down 3 major issues for determination, as follows: 

1. Whether or not the mast intended to be erected by defendant posed a threat to life and property of persons living within the environs;
2. Whether or not defendant had a permit to carry out the constructional works and if so whether any such permit was issued in breach of the GDCT and wrongful and of no legal effect; and 
3. Whether or not the constructional works being carried out by defendant constituted nuisance. 

The Decision

The court dismissed plaintiff’s action and held that although defendant’s representative had admitted that the distance between the base of the telecommunication masts and plaintiff’s property was less than 20 metres, that provision in the GDCT was not absolute and that its applicability depended on both local conditions and agreements with local assemblies. The court found that defendant had an agreement with the local assembly, and that the neighbours had even been consulted before the permit to build the mast was granted. 

The court further held on the claim for private nuisance, that on grounds of public policy and except breach of statute, when a statute authorises an activity to be done, a defendant or the person so authorised is not answerable for inevitable discomfort, inconvenience or interference of a right or interest.

On the legal effect of the GDCT, the court held that it was a product of an Industry Technical Committee (ITC) put in place by an Inter-Ministerial Committee to address growth and environment sanity in the communication industry and that it was not law within the context of sources of law in Ghana. Thus, a breach of the GDCT could not form the basis of any action on nuisance as plaintiff claimed in her suit.

The court further held on the evidence that the plaintiff’s claims that the mast posed a threat to life and property was unfounded because her claims were based merely on her internet searches. This situation was compounded by the plaintiff’s testimony that that her claim that the mast was likely to fall on her property and kill her, was based on a newspaper publication. The court accepted the defendant’s explanation that such an incident could only occur during a poorly-executed decommissioning or dismantling of a tower. 

The court finally held that plaintiff’s evidence was borne out of perceptions and suspicions, and that the courtroom was no place for indulging perceptions, suspicions and unjustified fears. The judge concluded that multiples of groundless suspicions and their repetitions in the witness box by a party and witnesses do not metamorphose into credible evidence in law.

Comments

First, courts will not rely on only perceptions and suspicions about the safety of telecommunication masts to injunct the construction or operation of a mast. 

Second, there is a high standard of proof (based on the preponderance of probabilities as required in civil litigations) on a plaintiff who intends to mount a similar action in court. Without an expert testimony on radiations emitted by the mast beyond acceptable limits or on defective construction of the masts or evidence showing a breach of law in the permit process, an action of this nature is bound to fail.

Third, a telecommunication company cannot be prevented from constructing and operating a telecommunication mast, regardless of how inconvenient the construction may be to someone, except there is a breach of law. 

Conclusion

This decision is likely to strengthen Ghana's telecommunication infrastructure, and would mean the construction of more masts to improve communications. However, there is a real risk of potential abuse by telecommunication operators as GDCT regulating the citing of telecommunication masts is not law. All that the telecommunication operator is required to do is to identify the area technically suitable for the citing of the mast and secure the necessary permits and would be free to construct the mast.