Latu v Pulu [2013] TOSC 43; CV 64 of 2012 (3 May 2013)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

CV 64 of 2012

BETWEEN:

1. TEVITA ULUILAKEPA FANGUPO LATU
2. 'ILAISAANE LATU
Plaintiffs

AND:

1. REVEREND PITA PULU
2. CHRISTIAN OUTREACH CENTRE
Defendants

Mrs F.L. Vaihu for the Plaintiffs
S.V. Fa'otusia for the Defendants

JUDGMENT

[1] The First Plaintiff is the registered holder and long time resident of an allotment at Pili, Kolofo'ou. The First Plaintiff and his wife built three houses on the land between 1994 and 2001. The Second Plaintiff operates a licensed business renting out part or all of the houses.

[2] In about 2010 the Second Defendant, of which the First Defendant is the President, was granted a lease over part of the adjoining allotment. The Defendants began constructing a church building on their land and, in about 2011 began holding religious services there.

[3] The Defendants' congregation numbers about 40 to 50. The First Defendant described their church as a branch of the Pentecostal Church. It will not be disputed that characteristics of pentecostal worship are spontaneity, speaking in tongues and the use of contemporary worship music. In the words of St Paul in his first Epistle to the Thessalonians 5: 19 "Quench not the spirit".

[4] On 28 September 2012 this action in nuisance was commenced. The Plaintiffs complain of unbearably loud noise from the church. It is said that shouting, clapping, screaming, stamping of feet, loud preaching and amplified music tormented them for about 3 hours each weekday evening and for 7 hours or more on Sundays: "The First Defendant was spoken to, on numerous occasions but he just ignored the complaints from the Plaintiffs and everyone else".

[5] As a result of the Defendants' actions it is said that the Plaintiffs have lost all but one of their tenants (he being, apparently, hard of hearing) and, in addition to inconvenience and disturbance, have thereby suffered damage and loss.

[6] On the day that the writ was issued the Plaintiffs also sought an injunction to restrain the Defendants from causing further disturbance. This application was supported by an affidavit from the Plaintiffs repeating their principal complaints and exhibiting a petition addressed to the Minister of Lands complaining of the noise being made by the Defendants, signed by 50 Fasi residents. This petition was also supported by a letter from the District Officer dated 4 September 2012.

[7] Four other affidavits supporting the Plaintiffs were also filed. Two of these were deposed by Australian volunteers who had rented houses from the Plaintiffs. One was by another neighbour while the fourth was by a retired Chief Inspector of Police living two allotments away. All four complained of unreasonably loud and disturbing noise emitted by the Defendants. Jill Hopkins described how she had sought the assistance of the police who were unable to help. She also described members of the Second Defendant as being "unsympathetic" to her attempts to have the noise reduced.

[8] On 2 October 2012 an interim order was granted ex parte restraining the Defendants from conducting church services with unreasonably high volume and restricting services to 1 1/2
hours in the mornings and 1 1/2 hours in the evenings every day of the week. The application for extension of the order was adjourned to 9 October. On 9 October the Defendants (though served) did not appear and the order of 2 October was extended indefinitely. I was told that the situation had not improved.

[9] A Statement of Defence was filed on 17 October. The Defendants admitted speaking in tongues, singing and clapping. They suggested that the noise they made was an "integral part" of their "spiritual awakening" which they "would like to entice the Plaintiffs to experience". They described the melodies made by them as "heavenly" and stated that they had reduced the volume to a "bearable level". Finally, the Defendants submitted:

"It is their constitutional right which is enshrined in the Constitution to practice their religion and to worship God as they may deem fit in accordance with the dictates of their own conscience and to assemble for religious services in such places as they may appoint".

[10] On 30 October 2012 the Plaintiffs filed an ex parte application to apply for an order of committal of the Defendants on the ground that they had willfully failed to comply with the orders of the Court made on 2 and 9 October. The application was supported by an affidavit of the Second Plaintiff.

[11] On 2 November the matter was adjourned to 14 November after I was told that the parties were attempting to resolve the problem. On 14 November the action was set down for trial on 23 November with the application for committal to be heard concurrently.

[12] On 7 March 2013 after hearing evidence I found that the Defendants had deliberately disobeyed the orders of 2 and 9 October. The First Defendant was fined $1000 with 14 days to pay the fine. In default of payment he was sentenced to 14 days imprisonment. I also granted the Plaintiffs further injunctive relief until further order. Judgment in the action was reserved. I now give my reason for finding the First Defendant to have been in contempt and I also give my judgment in the action proper.

[13] On 1 March 2012 the Plaintiffs gave evidence. The First Plaintiffs evidence briefly confirmed that of his wife and need not separately be summarized. The Second Plaintiff told me that she had been running a house rental/guest house business for several years. When all the properties were fully let she made $2000 per month. She was one of several similar businesses operating in the area. Prior to the noise from the church, she had both houses let out but since the trouble began she had lost all her tenants, save one, because of the noise.

[14] The Second Plaintiff referred to a notebook which she had compiled contemporaneously. Mr Fa'otusia did not object. The Second Plaintiff told me that she had compiled this record on the days that the noise was emitted. She read out the entries from 7 October 2012 to 27 January 2013. Typically, she recorded loud noise, singing, clapping, screaming on Sunday mornings, again in the afternoon and then once again in the evenings, sometimes up to 8:30pm or even later.

[15] The Second Plaintiff told me that the noise was so loud that it could be heard throughout her house which was made of concrete. Even with all the doors and windows closed the music could clearly be heard; the bass sounds could actually be felt. She could hear the preacher screaming at the congregation but could not make out precisely what he was saying.

[16] According to the Second Plaintiff, she had repeatedly called the police, so often in fact that she became ashamed. It made no difference. Even if the noise was lowered after a police visit it was soon put up again after they left. She and the First Defendant and another pastor discussed the situation but no understanding was reached. She did not want to bring legal proceedings against a church if some other solution could be found. She had paid for and presented two sliding doors to the church in the hope that this would help reduce the noise but in the event that was not successful. Finally, when she and her husband could no longer stand the noise and after she had lost all but one of her tenants, she consulted her Solicitor.

[17] In cross examination the Second Plaintiff conceded that even before the church arrived she did not always have her properties fully tenanted. She also conceded that in the three weeks prior to the trial the volume of noise had been kept significantly lower. Nevertheless, the amplified noise was still far too loud; if the Defendants stopped using their amplifiers she thought the volume of noise might be bearable.

[18] The only witness for the defence was the First Defendant who told me that he was a pastor and President of the church. He accepted that the style of service is quite noisy: "We do what the Bible says, to give grace and worship God, the King of Kings".

[19] The Defendant's exact position was not easy to determine. On the one hand he accepted that the noise had been too much, on the other "I don't know what they are complaining about". Some of the noise he blamed on Fijians who, since December 2012 had left the congregation. He explained that sometimes he goes overseas for conferences and it is possible that excessive noise had been made while he was away.

[20] The First Defendant explained that the congregation, which amounted to about 40 or 50 mainly come from beyond Pili. The church had been given the land by the First Plaintiffs brother. Previously they had worshipped in a hall at Fofo'anga without any problem. He told me that he not been aware of the Plaintiffs guest houses when they took the land and began building the Church. During the injunction hearing the Court visited the church and the First Defendant confirmed that little had since changed. The Church has no doors or windows, no floor covering or ceilings, no wall linings and no sound proofing. The First Defendant told the court that they hope to install sound proofing and air conditioning in due course.

[21] The First Defendant accepted that the noise made by the church had resulted in many complaints and visits by the police. On one occasion the First Plaintiff threatened to shoot him if the noise was not reduced. He and some of his colleagues had visited their neighbours "whom we love" and asked for forgiveness. He had tried his best to keep the noise down - his plan for the future was to keep the noise down. If necessary, the Church was prepared to conduct its services without amplification "we can just sing, like other churches".

[22] The Constitution of Tonga, Clause 5, guarantees freedom of religion. It states as follows:

"All men are free to practice their religion and to worship God as they may deem fit in accordance with the dictates of their own conscience and to assemble for religious service in such places as they may appoint. But it shall not be lawful to use this freedom to commit evil and licentious acts or under the name of worship to do what is contrary to the law and peace of the land".

[23] In a careful and helpful written submission, Mr Fa'otusia with admirable realism accepted that the Defendants could not escape the complaint that the Church had, as alleged by the Plaintiffs, been emitting far too much noise. He suggested that the Defendants be allowed to conduct their services for as long as they please according to the dictates of their conscience but that the use of amplification be prohibited.

[24] So far as damages were concerned, Mr Fa'otusia suggested that the Plaintiffs' loss had not been adequately proved, no documentation had been produced in support. Citing R v Polei [1999] Tonga LR 110, Mr, Fa'otusia suggested that any damages imposed should be commensurate with the Defendants' means which were almost nil. In his submission no damages should be awarded at all and both sides should bear their own costs.

[25] In view of Mr Fa'otusia's concessions it is not necessary to examine the law in relation to nuisance caused by noise in any detail. It is not however to be doubted that non pecuniary losses caused by noise resulting in annoyance, inconvenience or illness are recoverable (see e.g. Halsey v Esso Petroleum Co. [1961] 1 WLR 683). A useful commentary on the attitude of the Courts to noise pollution caused by the use of amplification for religious purposes may be found in the Commonwealth Human Rights Law Digest Vol. 6 No.1 Autumn 2007. The power of the Minister to control emissions of noise given by Section 9 of the Public Health Act 2008 may also be noted.

[26] Unfortunately, the Statement of Claim, as is quite commonly the case, claimed a specific amount by way of general damages but did not include a claim for special damages. This type of pleading is defective; whereas general damages should not be quantified but are instead to be left to the Court to evaluate, special damages must be specially claimed and strictly proved (Stroms Bruks v Hutchinson [1905] UKLawRpAC 52; [1905] AC 515 and see the White Book 1988 Edn. paragraph 18/12/32). It may however be noted that paragraph (e) of the Plaintiffs' prayer sought "any other Order this Honourable Court may deem just".

[27] Although Mr Fa'otusia correctly pointed out that there was little documentary evidence to support the Second Plaintiffs claim that the Plaintiffs had lost a substantial part of the business, I found the Plaintiffs to be entirely believable witnesses. There were also the two affidavits from tenants to suggesting that the noise was so intolerable that they moved away and would not recommend others to move in. Paragraph 12 of the Statement of Claim pleaded that tenants had been lost and no particulars of this allegation were sought.

[28] Having heard and seen the evidence I am entirely satisfied that the noise caused by the Defendants did in fact cause serious damage to the Plaintiffs business and I am satisfied that they should be adequately compensated for this loss by way of special damages.

[29] The principle referred to by Mr Fa'otusia in Polei (above) deals with the imposition of fines on persons unable to pay and has no application to civil awards of damages. It is not the case that awards of damages are reduced because of a Defendant's limited means.

[30] I am satisfied that the Plaintiffs have proved that they suffered at least of loss of half of their business for a period of 6 months. At a rate of $800 per month this equals $4800.

[31] I am also satisfied that the Plaintiffs have had to endure quite unreasonable and unacceptable noise for a similar period of time, albeit not continuously. I award $10000 general damages for the suffering thereby caused.

[32] Result:

1. There will be an award of $4800 special damages.

2. $10000 will be awarded by way of general damages.

3. I will hear counsel as to costs.

M.D. Scott
CHIEF JUSTICE

Dated: 3 May 2013