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GUIDE TO ENVIRONMENTALLAW IN UGANDA: A CASEBOOK

Volume I

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First published in Uganda in 2003 by the United Nations Environment Programme for and on behalf of NEMA.

Copyright 2004, NEMA

ISBN:...

This publication may be reproduced in whole or in part and in any form for educational or non-profit purposes withoutspecial permission from the copyright holder, provided the source is acknowledged. NEMA would appreciatereceiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resaleor for any other commercial purpose whatsoever without prior permission in writing from NEMA.

National Environment Management AuthorityP.O. Box 22255, Kampala, UgandaTel: +256-41-251064/5/5Fax: +256-41-257521E-mail: info@nemaug.orghttp://www.nemaug.org

DISCLAIMERThe contents of this volume do not necessary reflect the views or policies of NEMA or contributory organizations. Thedesignations employed and the presentations do not imply the expressions of any opinion whatsoever on the part of NEMAor contributory organizations concerning the legal status of any country, territory, city or area or its authority, or concerningthe delimitation of its frontiers or boundaries.

Websites given in this volume were correct at the time of going to press. NEMA cannot be held responsible for anysubsequent changes.

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United Nations Environment ProgramP.O. Box 30552NairobiKenyaTel: +254-20-623252http://www.padelia.unep.org

National Environment ManagementAuthorityP.O. Box 22255KampalaUgandaTel: +256-41-251065http://www.nemaug.org

Greenwatch UgandaP.O. Box 10120KampalaUgandaTel: +256-41-344613http://www.greenwatch.or.ug

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Acknowledgments

The National Environment Management Authority, United Nations Environment Programme (UNEP) andGreenwatch would like to acknowledge the contributions of Kenneth Kakuru, Phillip Karugaba,Carl Bruch, John Pendergrass, Professor Charles Okidi and Robert Wabunoha of who helped to sourcematerials and provided ideas for the development of this Casebook.

The authors also wish to exress appreciation to the authors of other publications of judicial decisions,such as South Asia Cooperative Environment Programme (SACEP), United Nations Environment Programme (UNEP),Environmental Law Institute (ELI), and Environment Action Team (LEAT) of Tanzania whose reports have been referredto in this publication.

Special mention is also made of the dedicated team work of Kenneth Kakuru, Sarah Naigaga, IreneSsekyana, Harriet Kezaabu and Rachel Kirabo without which the compilation of this Casebook would not have been completed. Efforts of Robert A. Wabunoha and Dwasi Jane who reviewed the final draft are also acknowledged.

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Foreword

Where policies, institutions and laws exist for the management of environmental resources, there is bound to beconflicts of interest, hence litigation. These conflicts are usually complex and their resolution should lead toensuring sustainable development.

It has also been shown that environmental problems are a matter of urgency and usually have widespreadeffect. It is therefore the continuing responsibility of lead agencies, private investors, the public and governmentto use all practical means, consistent with other essential considerations of national policy, to avoid environmentaldegradation and to promote sustainable development. On the basis of this responsibility, substantive and procedural provisions have been designed in environmental laws to establish standards of compliance.

This Casebook, therefore, is a result of efforts to develop and enhance the legal and institutional framework forthe management of environment in Uganda. The Casebook is a compilation of judicial decisions in environmentalcases in Uganda, and other jurisdictions. It was compiled as part of the training tools for the training programmein environmental law for judicial officers and practitioners in Uganda that was sponsored by the United NationsEnvironment Programme (UNEP) through the Partnership for the Development of EnvironmentalLaw and Institutions in Africa (PADELIA).

The objectives of PADELIA are to assist selected African countries to develop their capacity in environmentallaws and institutions. In Uganda, UNEP-PADELIA works in partnership with the National Environment Management Authority (NEMA-Uganda) in building the capacity of government, nongovernmental organisations, civil society, private sector, the public and other stakeholders to develop and promote compliance with environmental laws. Themandate of NEMA includes, among others, disseminating environmental information to stakeholders. Through UNEP-PADELIA support, Uganda's judfical officers have been trained in environmental law through a series oftraining workshops organized under the auspices of Greenwatch, a non-governmental environmental law advocacy organization focusing on promoting and enhancing public participation in the management and sustainableutilisation of natural resources. Greenwatch is also supporting legal and institutional framework for environmentalmanagement in Uganda. Part of the materials generated during the judicial training workshops have been includedin this Casebook.

The Casebook is a compilation of court cases relating to various topical issues in environmental litigation, based on Uganda'sConstitution, which has provisions for environmental protection and statutory environmental laws and regulations. The cases,which were extensively discussed by presiding judges, illustrate a variety of environmental law subjects, including locus standi, polluter pays principle, public trust doctrine and the precautionary principle, among others. It is clear that conceptual and procedural advances have been realized and are nowprecedented with a blend of wisdom from the judges. Environmental law, however, still needs a unifying analyticalframework focusing on the sources of conflict to enable judicial officers confidently embrace their role in respondingand resolving environmental issues.

This Casebook is meant to facilitate legal practitioners and judicial officers who are or may be involved in thelegal matters of environmental law. It is also intended as a resource material on the conceptual framework forinterpretation of environmental law. It is also meant tofacilitate the work of academicians, practitioners andjudicial officers in finding judicial precedents on environmental law. It is anticipated that as more environmental law cases are decided by Ugandan courts, enough materials will, in time,be generated for a second edition of this Casebook. Aryamanya Mugisha Henry Executive Director NEMA (Uganda)

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TABLE OF CONTENTS

1. Greenwatch v. Attorney General And National Environment Management Authority................................1

2. Jane Lugolobi & 9 Others v. Gerald Segirinya T/A Smart Curry Powder Factory......................................6

3. British American Tobacco (U). Ltd. v. Environmental Action Network Ltd (1)............................................9

4. The Environmental Action Network Ltd v. Attorney General And NationalEnvironment Management Authority (NEMA) (1).................................................................................... 15

5. The Environmental Action Network Ltd. Versus The Attorney General & National EnvironmentManagement Authority (NEMA) (2)......................................................................................................... 17

6. British American Tobacco (B.A.T.) (U) Ltd. v. The Environmental Action Network Ltd. (2).......................23

7. The Environmental Action Network Ltd. v. Attorney General And NationalEnvironment Management Authority (3).................................................................................................. 25

8. Greenwatch (U) Ltd. v. A.G & Uganda Electricity Transmission Company Ltd..........................................17

9. Siraji Waiswa v. Kakira Sugar Works Ltd................................................................................................. 33

10. Greenwatch & ACODE v. Golf Course Holdings Ltd..................................................................................36

11. Byabazaire Grace Thaddeus v. Mukwano Industries.................................................................................39

12. National Association of Professional Environmentalists v. AES Nile Power...............................................45

13. Dr. Bwogi Richard Kanyerezi v. The Management Committee of Rubaga Girls' School.............................51

14. Dr. J.W. Rwanyarare, And 2 Others v. The Attorney General....................................................................54

15. Rodgers Muema Nzioka & 2 Others v. Tiomin Kenya Limitd (Kenya)........................................................60

16. Nairobi Golf Hotels (Kenya) Ltd. v. Pelican Engineering And Construction Co. Ltd (Kenya)......................68

17. Niaz Mohamed & Jan Mohamed v. Commissioner of Lands and Others (Kenya).....................................71

18. Abdikadir Sheikh Hassan & Two Others v. Kenya Wildlife Service (Kenya)................................................76

19. Paul Nderitu Ndungu & Two Others v. Pashito Holdings Ltd. & Shital Bandari (Kenya)..............................77

20. Prof. Wangari Maathai, Pius John Njogu & John F. Makanga v. City Council of Nairobi, Commissioner of Lands Commission & & Market Plaza Ltd. (Kenya).........................................................81

21. Maina Kamanda & Another v. Nairobi City Council & Another (Kenya).......................................................84

22. Rev. Christopher Mtikila v. The Attorney General (Tanzania).......................................................................87

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23. Felix Joseph Mavika & Four Others v. Dar es Salaam City Commissioners & Ilala Municipal Commission (Tanzania)..........................................................................................104 24. Hon. Attorney General v. Lohay Aknonaa Y & Joseph Lohay (Tanzania)......................................106 25. Christopher Aikawo Shayo v. National Chemical Industries & Pesticides Manufacturers Ltd........114 26. Joseph D. Kessy And Others v. The City Council of Dar es Salaam (Tanzania)..........................120 27. Festo Balegele & 794 Others v. Dar es Salaam City Council (Tanzania).....................................124

28. Sierra Club v. Rogers C.B. Morton (U.S.A.)................................................................................ 129

29. Calvert Cliffs Coordinating Commities Inc. v. Atomic Energy Commision (U.S.A.).......................140

30. Leatch v. National Parks And Wildlife Service And Shoalhaven City Council (Australia)..............158

31. Bughaw Cielo, Crisanto, Anna, Daniel And Francisco v. The Honorable Fulgencio,Factoran (The Philippines)........................................................................................................... 170

32. K. Ramakrishnan& Others v. State of Kerala & Others (India).....................................................182

33. Shehla Zia & Others v. Water And Power Development Authority (Wapda)(Pakistan).................194

34. Rural Litigation & Entitlement Kendra Dehradun And Others v. State of UttahPradesh & Others (India)............................................................................................................ 208

35. In Re: Human Rights Case, PLD, 1994 Supreme Ct. 102 (Pakistan). ........................................ 214

36. Vellore Citizen’s Welfare Forum v. Union Of India & Others (India)............................................ 216

37. Van Huyssteen & Others v. Minister of Environmental Affairs & Others (S. Africa)..................... 232

38. Wildlife Society of South Africa v. Minister of Environment (S.Africa)......................................... 252

39. Wildlife Society of Southern Africa & Others v. Minister Of Environmental Affairs & Tourism of The Republic of South Africa & Others (S. Africa)...................................... ........................... 253

40. Col.K. Besigye Versus Yoweri Kaguta Museveni And The Electoral Commission ....................... 264

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1. Locus Standi/Right to a Clean and Healthy environment

(a) Greenwatch v. A.G & NEMA(b) Greenwatch (U) Ltd. Vs A.G & UETCL(c) TEAN Vs A. G & NE MA(d) Siraji Waiswa v. Kakira Sugar Works Ltd(e) Byabazaire v. Mukwano Industries(f) Prof. Wangari Maathai & 2 Others v. City

Council of Nairobi, Commissioner of Lands &Another

(g) Maina Kamanda & Another v. Nairobi CityCouncil & Another

(h) Rev. Christopher Mtikila v. The AttorneyGeneral

(i) Wildlife Society of South Africa v. Minister ofEnvironment

2. Access to Information(a) Greenwatch (U) Ltd. v. A.G & UETC Ltd.(b) Van Huysen and Others v. Minister Of

Environmental Affairs & Others

3. Environmental Impact Assessment(a) Greenwatch and ACODE v. Golf Course

Holdings Ltd(b) NAPE v. AES Nile Power(c) Rodgers Muema Nzioka & 2 Others v. Tiomin

Kenya Limited(d) Christopher Aikawo Shayo v. National

Chemical Industries and PesticidesManufacturers Ltd

(e) Leatch v. National Parks And 3 Others

4. Choice of Forum(a) Dr. Bwogi Richard Kanyerezi v. The

Management Committee, Rubaga Girls School

5. Public Trust Doctrine(a) Siraji Waiswa v. Kakira Sugar Works Ltd.(b) Nairobi Golf Hotels (Kenya) Ltd v. Pelican

Engineering and Another.(c) Niaz Mohamed Jan Mohamed v.

Commissioner of Lands & 3 Others(d) Abdikadir Sheikh Hassan & 4 Others v.

Kenya Wildlife Service(e) TEAN v. A G & NEMA(f) Paul Nderitu Ndungu and 2 Others v. Pashito

Holdings Limited & Another(g) Sierra Club v. Rogers C.B. Morton

& Another(h) In Re: Human Rights Case

LIST OF CASES ACCORDING TO SUBJECT MATTER

6. Precautionary principle(a) TEAN v. A.G & NEMA(b) Jane Lugolobi & 9 Others v. T/A Smart Curry

Powder Factory.(c) BAT v. TEAN(d) Calvert Cliffs Coordinating Comm’s Inc. v.

Atomic Energy Commission(e) Bughaw Cielo and Others v. Factoran(f) Rural Litigation & Another v. State of Uttah

Pradesh & Others(g) Vellore Citizen’s Welfare Forum v. Union Of

India & Others

7. Polluter pays principle(a) Byabazaire Grace Thaddeus v. Mukwano

Industries(b) Felix Joseph Mavika & 4 Others v. DSM City

Commissioner & Another(c) Joseph D. Kessy And Others v. The City

Council of DSM(d) Festo Balegele And 794 Others v.DSM City

Council(e) Vellore Citizen’s Welfare Forum v. Union Of

India & Others

8. Procedural issues and Technicalities(a) Greenwatch v. A.G & NEMA(b) Rev. Christopher Mtikila v. The Attorney

General(c) Dr. J.W. Rwanyarare & 2 Others v. A.G(d) Paul Ssemwogerere & Zachary Olum v. The

Attorney General(e) NAPE v. AES Nile Power(f) Hon. Attorney General v. Lohay Aknonaay &

Another

9. Public Interest Litigation/Constitutional petitions(a) Rev. Christopher Mtikila v. The Attorney

General(b) TEAN v. A.G & NEMA(c) K. Ramakrishnan and Others v. State of

Kerala and Others(d) Shehla Zia v. Water And Power Development

Authority(e) Dr. K. Besigye v. Yoweri Kaguta Museveni &

Electoral Commission.

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This miscellaneous cause was brought by notice ofmotion under Article 50 (1) and (2) of the Constitutionof the Republic of Uganda, Rule 3(1) of theFundamental Rights and Freedoms (EnforcementProcedure) Rules; 8,1 No. 26 of 1992, Order 2 Rule 7and Order 48 Rules 1 and 3 of the Civil ProcedureRules.

The applicants sought the regulation of themanufacture, use, distribution and sale of plastic bagsand restoration of the environment to the state it wasbefore the menace caused by the plastic.

Counsel for the respondents raised preliminaryobjections; that the application had no cause of action,that it didn’t comply with Order 1 Rule 8 of the CPRwhich stipulates rules of representative action and thatthe application was supported by a defective affidavitwhich should be rejected.

HELD

1. The essential elements to support a cause of actionagainst each of the two respondents have beensatisfied.

2. Article 50 of the Constitution does not require thatthe applicant must have the same interest as theparties he or she seeks to represent or for whosebenefit the action is brought. Court is under anobligation to hear the concerned citizen, in theinstant case, the applicant.

3. In the two affidavits in support of this application,the deponent avers that the matter contained in

each of the affidavits were based on the deponentsknowledge. Therefore, the third preliminaryobjection is overruled.

In the final result, the preliminary objections raisedon behalf of the respondents are overruled.

RULING

This Miscellaneous cause is brought by Notice ofMotion under Article 50 (1) , (2) of the Constitutionof the Republic of Uganda, Rule 3 (1) of theFundamental Rights and Freedoms (EnforcementProcedure) Rules, S.I No. 26 of 1992, Order 2 Rule 7and Order 48 Rules 1 and 3 of the Civil ProcedureRules. The application is brought by Greenwatch, aNon-Governmental Organisation registered andincorporated in Uganda as a company limited byguarantee. The objectives of the organisation includefocusing on issues and problems of the Environmentand using all avenues possible to monitor and exposedanger to environment however caused and bywhomsoever.

The application is brought against the Attorney Generaland the National Environmental ManagementAuthority. The Applicant seeks the following ordersand declarations:

1. A declaration that manufacture, distribution, use,sale, disposal of plastic bags, plasticcontainers, plastic food wrappers, all other formsof plastic commonly known and referred to as“Kaveera” violates the rights of citizens of Ugandato a clean and healthy environment.

GREENWATCH

VERSUS

ATTORNEY GENERAL AND THE NATIONAL ENVIRONMENTMANAGEMENT AUTHORITY (NEMA)

(Misc. Application. No. 140 of 2002)

High Court (The Hon. Mr. Ag. Justice Lameck N. Mukasa): July 4th 2003

Civil Procedure: whether the plaint disclosed a cause of action.

Civil Procedure: whether Order 1 Rule 8 of the CPR was complied with.

Civil Procedure: whether the affidavit contravened Order 17 Rule 3(1) CPR hence should be dismissed ashearsay

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2. An order banning the manufacture, use,distribution and sale of plastic bags and plasticcontainers of less than 100 microns.

3. An order directing the second Respondent to issueregulations for the proper use and disposal of allother plastics whose thickness is more than 100microns including regulations and directions as torecycling and re-use of all other plastics.

4. An environmental restoration order be issuedagainst both Respondents directing them to restorethe environment to the state in which it was beforethe menace caused by plastics.

5. An order directing the importers, manufacturers,distributors of plastics to pay for the costs ofenvironmental restoration.

6. No order be made as to costs.

Under the Fundamental Rights Freedoms(Enforcement Procedure) Rules 1992, Rule 6 evidenceat the hearing of an application shall be tendered byaffidavit unless court directs that evidence be givenorally on any particular matter. In that regard theApplicant filed two affidavits both sworn by SarahNaigaga, the National Co-ordinator and ChiefExecutive Officer of the applicant. The firstRespondent filed an affidavit in reply deponed to byMr. Malinga Godfrey, a State Attorney in the AttorneyGenerals Chambers. The second Respondent filed anaffidavit in reply deponed to by Mr. Patrick Kamanda,an Environmental Inspector with Second Respondent.

When the cause came up for hearing Mr. Oluka, whorepresented the Attorney General raised threepreliminary points of objection. The first objection wasthat the application did not disclose a cause of actionagainst the Attorney General. The second objectionwas that the application was not properly before thisCourt in that it was brought by the Applicant on behalfof other Ugandans who had not authorised theApplicant to do so and without leave of Court as legallyrequired under Order 1 rule 8 of the Civil ProcedureRules before filing a Representative suit. Thirdly thatthe application is supported by defective affidavitswhich should be rejected.

Mr. Robert Wabunoha, a Senior Legal Officer withthe Second Respondent, on behalf of the SecondRespondent associated himself with the objectionsraised on behalf of the first Respondent. Heparticularly raised an objection that the applicationdid not disclose a cause of action against the second

Respondent. I will start with the first objection,Whether the application discloses a cause of actionagainst any of the Respondents. Mr. Oluka, Counselfor the Attorney General submitted that the applicationdid not satisfy the three essential elements to supporta cause of action as set out in Auto Garage vs Motokov(No.3) r 197/11 EA 514. that:

i) The Plaintiff (Applicant) enjoyed a right;ii) The right has been violated, andiii) The Defendant (Respondent) is liable.

The Applicant is a Ugandan Company and Article 39of the Constitution provides: “Every Ugandan has aright to a clean and healthy environment.” See alsoSection 4 (1) of the National Environment Statute No.4 of 1995.

Sarah Naigaga in paragraph 4 and 5 of the affidavit insupport of this application avers that uncontrolled andindiscriminate use and disposal of plastics has causedharm to the environment and the plastics used as carrierbags, containers are dangerous to human health andlife. Such averments amount to a plea of violation ofevery Ugandan’s right to a clean and healthyenvironment.

Article 20 (2) of the Constitution provides:

“ The rights and freedoms of the individual andgroups enshrined in this chapter shall berespected, upheld and promoted by all organsand agencies of the Government and by allpersons.”

And Article 245 of the Constitution provides:

“Parliament shall, by law, provide for measuresintendeda) to protect and preserve the environment

from abuse, pollution and degradation;b) to manage the environment for sustainable

development andc) to promote environmental awareness.”

The Constitution under the National Objectives andDirective Principles of State Policy; Objective(XXV11) provides:

“The Environmenti) The state shall promote sustainabledevelopment and public awareness of the needto manage land, air, water resources in abalanced and sustainable manner for the presentand future generations.

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(ii)———(iii) The state shall promote and implementenergy policies that will ensure that people’sbasic needs and those of environmentalpreservation are met.”

I have studied the Application and two affidavitsfiled in support and I found them pointing a finger atthe State that it has failed or neglected its duty towardsthe promotion or preservation of the environment. TheState owes this duty to all Ugandans. By so failing orneglecting, the Government is in breach of its dutytowards the citizens of Uganda. Any concernedUgandan has a right of action against the Governmentof the Republic of Uganda, for that matter against theAttorney General in his representative capacity, to seekthe enforcement of that failed or neglected duty of theState.

The National Environmental Management Authority(Second Respondent) is a body corporate establishedunder Section of 5 of the National EnvironmentalStatute No.4 of 1995 capable of suing or being sued inits corporate name. The Second Respondent has amandatory duty, under the Statute, Section 3, to ensurethat the principles of environmental management areobserved. These principles include:

(a) to assure all people living in the countrythe fundamental right to an environmentadequate for their health and well being.........(g) to establish adequate environmentprotection standards and to monitor changesin environmental quality.(i) to require prior environmental assessmentsof proposed projects which may significantlyaffect the environment or use of naturalresources.(k) to ensure that the true and total costs ofenvironmental pollution are borne by thepolluter.

See also Section 7 as to the functions of the Authority.

In paragraphs 5, 6, 7 and 10 of the affidavit in supportdated 21st November 2002 are averments to the effectthat the use of plastic containers is dangerous to thehuman health and life of Ugandans and in paragraph 9that plastics are dangerous to domestic and wildanimals and in paragraph 8 that plastic disposal isdegrading the environment and threatening foodsecurity. Such averments read together with the prayerin the Application for an order directing the second

respondent to issue regulations for the proper usedisposal, recycling and re-use of plastics amount to aplea that the second Respondent is in breach of itsstatutory duty to ensure that the principles ofenvironment management are observed, which duty itowes to the citizens of Uganda.

I therefore find that the three essential elements tosupport a cause of action against each of the twoRespondents have been satisfied. The first objectionis overruled.

The second ground of objection is that the applicationwas improperly before this court as it did not complywith the provisions of Order 1 Rule 8 of the CivilProcedure Rules.

Mr. Oluka argued that the first prayer in the Notice ofMotion makes reference to the fact that “Kaveeraviolets the rights of citizens of Uganda to a clean andhealthy environment.”

He submitted that there was no leave of Court allowingthe Applicant to represent all Ugandan and hecontended that the application amounted to arepresentative suit. He made reference to Rules 7 ofthe Fundamental Rights and Freedoms (EnforcementProcedure) Rules 1992 which make the Civil ProcedureAct and the Rules made thereunder applicable toproceedings under these Rules.

Counsel also referred to Constitutional Petition No.11 of 1997, James Rwanyarare & Another vs AttorneyGeneral in which it was argued for the first Petitionerthat he had properly brought the Petition on behalf ofa group known as the Uganda Peoples Congress sinceunder Article 50 (2) of the Constitution a group maybring a petition on grounds of violation of their humanrights and/ or freedoms and further that the group’spetition is not a representative action requiringcompliance with Order 1 Rules 8 CPR requiring leaveof Court. The Constitutional Court held, inter alia, thatthe first Petitioner acted unlawfully in bringing therepresentative action as he did. That he could only bringthe Petition on his own behalf. The group’s petitionwas held incompetent.

The above Petition is distinguishable from the instantApplication. Order 1 Rules 8 CPR provides

“where there are numerous persons having thesame interest in one suit, one or more suchpersons may, with the permission of the court,sue or be sued or may defend in such suit, onbehalf of or for the benefit of all persons so

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interested. But the court shall in such case givenotice of the institution of the suit to all suchpersons either by personal service or where,from the number of persons or any other cause,such service is not reasonably practicable, bypublic advertisement, as the court in each casemay direct.”

The rule concerns a group of persons identifiable bytheir common interest in the suit. Unlike in PetitionNo. 11 (above) where the group was of members of theUganda Peoples Congress, in this Application thesubject matter of the complaint is of common andgeneral interest not just to a group but to all citizens ofUganda. Consequently it is impracticable, to make allthe citizens of Uganda give consent to the applicationas required under the rule for a representative suit.In The Environmental Action Network Ltd vs TheAttorney General and National EnvironmentManagement Authority, Application No. 39 of 2001the Principle Judge, Mr. Justice J.H. Ntabgoba stated:“...the State Attorney failed, in his preliminaryobjection, to distinguish between actions brought in arepresentative capacity pursuant to Order 1 Rule 8 ofthe Civil Procedure Rules, and what are called Publicinterest litigation which are the concern of Article 50of the Constitution and S. 1 No. 26 of 1992. The twoactions are distinguishable by the wording of theenactment or instruments pursuant to which they areinstituted. Order 1 Rule 8 of the Civil Procedure Rulesgoverns actions by or against the parties (i.e. plaintiffor defendant) together with parties that they seek torepresent and they must have similar interest in thesuit. On the other hand, Article 50 of the Constitutiondoes not require that the applicant must have the sameinterest as the parties he or she seeks to represent orfor whose benefit the action is brought.”

Article 50 of the Constitution provides

“ (1) Any person who claims that a fundamentalor other right or freedom guaranteed under thisConstitution has been infringed and threatenedis entitled to apply to a competent Court forredress which may include compensation.(2) Any person or organisation may bring anaction against the violation of any person’s orgroups human rights.”

From the wording of clause (2) above any concernedperson or organisation may bring a public interestaction on behalf of groups or individual members ofthe country even if that group or individual is not awarethat his fundamental rights or freedoms are beingviolated.

There is limited public awareness of the fundamentalrights or freedoms provided for in the Constitution,let alone legal rights and how the same can be enforced.Such illiteracy of legal rights is even evident amongthe elites. Our situation is not much different from thatin Tanzania where Justice Rugakingira, in the case ofRev. Christopher Mtikila vs The Attorney General,High of Court of Tanzania Civil Case No.5 of 1993(unreported), stated

“Given all these and other circumstances, ifthere should spring up a public spiritedindividual and seek the Court’s interventionagainst legislation or actions that pervert theConstitution, the Court, as guardian and trusteeof the Constitution and what it stands for, isunder an obligation to rise up to the occasionand grant him standing.”

It is just appropriate that a body like the Applicant,comes up to discharge the Constitutional duty cast uponevery Ugandan to promote the Constitutional rightsof the citizens of Uganda and the institution of a suitof this nature is one of the ways of discharging thatduty. This court is under an obligation to hear theconcerned citizen, in the instant case the Applicant.The Second preliminary objection is accordinglyoverruled.

The third ground of objection is that the Applicationis supported by defective affidavits which should berejected. Mr. Oluka argued that in both affidavits insupport of the Application, the deponent, SarahNaigaga, avers that what was stated in each of theaffidavits was true and correct to the best of herknowledge. Yet in paragraphs 4 and 7 of the affidavitdated 11th March 2003 she states that she has obtainedfrom the Environmental Law Alliance Worldwidewhich is an International Non-GovernmentalOrganisation Network a scientific’ study analysingPlastic Waste Management in India by Priya Narayanwhich study was annexed to the affidavit. Counselargued that the findings as annexed and referred to inthe affidavit were not by the deponent, Sarah Naigaga,since she was not involved in the research. Hesubmitted that these findings were hearsay andcontravened the provisions of Order 17 rule 3 (1) CPR.

Further that Sarah Naigaga was not an Expert onEnvironmental matters. Order 17 rule 3 (1) CPRprovides:

“Affidavits shall be confined to such facts asthe deponent is able of his own knowledge toprove, except an interlocutory application, on

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which statements of his belief may be admitted,provided that the grounds thereof are stated.”

Counsel submitted that this application was not aninterlocutory application.

In the two affidavits in support of this application, thedeponent avers that the matters contained in each ofthe affidavits were based on the deponent’s knowledge.Knowledge can be acquired through human senses likeseeing, hearing, smelling, tasting or touching followedby understanding and perceiving what one has sensed.

In paragraph 5 of the second affidavit in support ofthe second affidavits in support of the application thedeponent gives the means of her knowledge as opposedto information. She avers:

“5. That I have read and understood the study. I doagree with its findings and recommendations.”

The veracity and credibility of the study by the meansof which the deponent acquired knowledge deponedto and attached to her affidavit could be challengedbut not at this stage. That can be done at the hearing ofthe application by adducing evidence to disprove,discredit or contradict the study’s findings andconclusions.

In Miscellaneous Application No. 39 of 2001 (above),the Deponent to the affidavit in support of theapplication deponed that he had recently learnt ofseveral medical reports high-lighting the damages ofexposure to second hand smoke or environmentaltobacco smoke. The deponent set out various reportswhich he said had high-lighted the dangers of exposureto second hand smoke or environmental tobaccosmoke. The learned Principle Judge reproduced someof these reports and went on the state:

“I would myself hesitate to challenge his avermentsbecause they are supported by research reports andscientific disclosures.”

I am of a similar view. The third preliminary objectionis accordingly overruled. In the final result, thepreliminary objections raised on behalf of theRespondents are overruled. The hearing of theApplication should proceed on merit. Since in the mainApplication it is prayed that no order be made as tocosts, in the same spirit, I accordingly make no orderas to the costs occasioned by the objections.

SignedLAMECK N. MUKASAAG. JUDGE4/7/03.

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This application was brought by chamber summonsunder Order 37 rules 1, 2 and 9 of the Civil ProcedureRules.

The applicants sought a temporary injunctionrestraining the respondents from carrying on themanufacture and processing of curry powder at therespondents factory in a residential area in Kanyanya,Kampala.

Counsel for the Applicants submitted that if orderswere granted in line with the averments in theRespondents affidavit in reply, that would meet theends of justice as they would meet the status quo asstated by the Respondent and would reduce thesuffering complained of by the Applicants.

Counsel for the Applicants therefore prayed for anorder for Temporary Injunction restraining therespondent from operating the factory outside the hoursof 8.00 a.m to 11.00 p.m., restraining him fromoperating the factory on Sundays so that he operatessix days a week from Monday to Saturday andrequiring the respondent to comply with his avermentsof paragraph 16 of the affidavit in reply that he operatesthe factory one week in three months and four weeksin one year.

HELD

1. The main purpose for a temporary injunction is topreserve the status quo pending the disposal of themain suit.

2. The law is that where facts are sworn to in anaffidavit and they are not denied or rebutted by theopposite party, the presumption is that such factsare accepted. See Massa v. Achen [1978] HCB 297

3. The averments in the Respondents affidavit in replyare neither denied nor rebutted. Without going intofurther merits and demerits of the application, Iorder that pending final disposal of H.C.C.S. No.482 of 2001 the manufacturing and processing ofcurry powder at the Respondents factory bemaintained at the status quo as stated by theRespondent in his affidavit in reply, that is to say;the machinery at the factory be operated betweenthe hours from 8 a.m. to 6 p.m. and that themachinery be operated for only one week within acontinuous period of three months.

4. The order as to costs in the main suit shall apply inthis application.

Application upheld.

RULING

This is an application by the plaintiff/applicants foran order of temporary injunction against the defendant/respondent, his employees, assignees, agents and

JANE LUGOLOBI & 9 OTHERS

VERSUS

GERALD SEGIRINYA T/A SMART CURRY POWDER FACTORY

(Misc. Application No. 371 of 2002)

High Court Kampala (The Hon. Mr. Ag. Justice Lameck N. Mukasa) : April 28th 2003

Civil Procedure: whether the status quo was maintained

Civil Procedure: whether the consequences of manufacture could be remedied by award of damages

Civil Procedure: whether the precautionary principle could be applied

Civil Procedure: whether the temporary injunction could be issued on a balance of convenience.

Civil Procedure: whether the temporary injunction could be issued on a Balance of convenience

7

workmen restraining them from carrying on themanufacture and processing of curry powder at the Respondents factory at Lutunda Zone,Kanyanya, Kampala. The application is brought by Chamber Summons under Order 37 rules 1,2 and 9 of the Civil Procedure Rules.

The grounds for the application are that: -

1. The applicants have filed a suit, H.C.C.S. No. 482of the 2001 now pending before this court to restrain the Respondent from carrying on thebusiness of curry powder manufacturing in their neighbourhood contrary to the law.

2. The continued manufacturing and processing ofthe curry powder at the Respondents' premisescontinues to be a health hazard to the Applicantswhose conditions of living have becomeunbearable because of the activities of theRespondent.

3. The consequences of continued processing of currypowder in the neighborhood of the applicants bythe Respondent are so serious and long term thatthey cannot be compensated by the damages.

4. The precautionary principle is applied in this case.

It is just and equitable on balance of convenience toissue the injunction.

The application is supported by an affidavit sworn byJane Lugolobi, one of the Plaintiff /Applicants, dated7th June 2003. The deponent therein states in paragraph3 that since the institution of the main suit theRespondent has installed bigger machinery, increasedthe time of production and the factory emits morepollution than before. That as a result, she has beenfalling sick with headaches, stomach pains, eyes andskin irritation and many other ailments.

She is unable to dry her clothes or food outside thehouse, for more than 10 minutes and cannot leave herwindows or doors open. Because of the continuedvibrations her pit latrine and those of others havecracked and are in danger of collapsing and she cannotread, write or listen to the radio or television. That thegas used in the factory is likely to have long time healtheffects, which may be fatal from the factory to makethe neighbors uneasy or ill. In paragraph 15 and 16 ofhis affidavit the Respondent avers that he does notoperate the factory at night, the factory operates from8.00a.m to 6.00p.m and that the factory machineoperates for only one week within every three months,

thus it operates for only four weeks in a given year.

In his submission Counsel for the applicants submittedthat if orders were granted in line with the avermentsin the Respondents affidavit in reply, that would meetthe status quo as started by the Respondent and wouldreduce the suffering complained of by the Applicants.Counsel therefore prayed for an order forTemporary Injunction to issue restraining theRespondent from operating his factory outside thehours of 8.00 a.m. to 11.00p.m, restraining him fromoperating the factory on Sundays so that he operatesonly six days a week from Monday to Saturday andrequiring the Respondent to comply with the avermentsin paragraph 16 of the affidavit in reply that he operatesthe factory one week in three months and four weeksin one year.

At this stage proof of facts on which the main suit isbased is not required.

The main purpose for a temporary injunction is topreserve the status quo pending the disposal of the mainsuit. See Noormohamed Jammohanod vs. KassamaliVirji Madhain (1953) EACA 8.

The applicants have been prompted to institute thisApplication by the conduct of the Respondent asdeponed to in the affidavit in support of this applicationwherein in paragraph 4 it is stated: -

“4 That since the suit was instituted, he hasinstalled bigger machinery increased the timeof production and the factory emits morepollution than ever before.”

In his affidavit in reply the Respondent stated:

15: “ That I do not operate the factory at night.The factory operates from 8.00a.m to6.00p.m.16:That I operate the factory for only oneweek and after one week I spend about threemonths without switching on the factorybecause the materials processed are packedand sold off within about three months. Thatmeans in one year I operate the machine foronly about four weeks.”

The law is that where facts are sworn to in an affidavitand they are not denied or rebutted by the oppositeparty, the presumption is that such facts are accepted.See Massa Vs. Achen [1978] HCB 297.

8

The above averments in the Respondents affidavit inreply are neither denied nor rebutted. In fact as, alreadypointed out above, the Applicants will be satisfied ifthe status quo as stated by the Respondent in paragraph15 and 16 of the Affidavit in reply is preserved. In thecircumstances without going into further details of themerits and demerits of the application, I hereby

make the following orders:

1. Pending the final disposal of H.C.C.S No.482 of2001 the manufacturing and processing of currypowder at the Respondents factory at LutundaZone, Kanyanya must be maintained at the statusquo as stated by the Respondent in his affidavit inreply, that is to say: -

i) the machinery at the factory must be operatedbetween the hours from 8.00 a.m. to 6.00p.m.

ii) the machinery at the factory must be operatedfor only one week within a continued periodof three months.

2. The order as to costs in the main suit shall bindthe costs for this application.

SGD: LAMECK. N. MUKASAAG. JUDGE28/04/03

Mr. Kenneth Kakuru - counsel for the applicants/plaintiffsMr. Lutakome - counsel for the Respondent/ defendant

9

An application was brought by notice of motion. Theappellant is M/s Environmental Action Network, Ltd.(TEAN). The application was filed under Article 50(2)of the Constitution of Uganda 1995 and rule 3 of theFundamental Rights and Freedoms (enforcementProcedure) Rules – Statutory Instrument No. 26 of1992.

The application seeks the following 3 orders of theCourt, which in this instance will be summed up inone ground or conclusive complaint which is;

The respondent as a manufacturer of a dangerousproduct is under a legal duty to fully and adequatelywarn consumers of its product of the full extent of therisks associated therewith.

HELD

a) Failure to make full disclosure of the dangers orrisks of smoking cigarettes to the consumers, istoo remote to amount to taking away ofthe life of such consumers.

b) The Constitution of Uganda does recognize theexistence of the needy and oppressed persons andtherefore it allows actions of public interest groupto be brought on their behalf. Order 1 rule 8 of theCivil Procedure Rule should apply to such needypersons, but Order 1 Rule 8 is concerned with“persons having the same interest in one suit”, but

the lacuna can be filled by laws to conform withthe Constitution. Therefore it is clear that the actioncan base on Article 22(1) of the Constitution.

c) On whether Article 50(2) of the Constitutionauthorizes the filing of class action as a form ofrepresentative action can be governed by theprocedure under Order 1 rule 8 of the CivilProcedure. The procedure Rules cannot governthem simply because they do not share theconcerns of violating their rights with those whobring actions on their behalf.

d) The court cannot determine fully and sufficientlythe kind of information to be included in thedesired labels and publications, it simply has no expertise to do so.

The application is unclear and embarrassinglyambiguous and could not pass the test. Needlessto add that such consideration would not fall underthe preview of application number 27 of 2003. Itwould have been a consideration during thehearing of application number 70 of 2002 whichin any event, is struck out with costs to theapplicant in the present application.

RULING

An application was made by notice of motion. Theapplicant is M/s Environmental Action Network, Ltd.

BRITISH AMERICAN TOBACCO LTD.

VERSUS

ENVIRONMENTAL ACTION NETWORK LTD. (1)

(HCCC No. 27 of 2003)

High Court, Kampala (The Principal Judge, Mr. Justice J.H. Ntabgoba): April 16th 2003

Environmental Law enforcement: whether court can order for warning labels on cigarette packets andcommercials

Constitutional law: enforcement of rights under Article 22

Constitutional Law: public interest cases under Article 50(2)

Constitutional Law: whether Article 50(2) allows class actions – as forum for representative action

Constitutional law: whether Article 50 excuses compliance with procedural requirements undercivil procedure.

10

(TEAN in short). The application was filed underArticle 50(2) of the Constitution of Uganda 1995 andRule 3 of the Fundamental Rights and Freedoms(enforcement Procedure) Rules-Statutory InstrumentNo. 26 of 1992. The application seeks the following 3orders of the court, namely,

1) A declaration that the respondent’s (M/s BritishAmerican Tobacco, Uganda Ltd.) failed to warnthe consumers and potential consumers of itscigarettes of the health risks associated withsmoking of the said products.

2) A declaration that the respondent’s failure to warnconsumers and potential consumers of itscigarettes of the health risks associated with theirsmoking constitutes a violation of or a threat tosuch persons’ right to life as prescribed underArticle 22 of the Constitution of the Republic ofUganda.

3) An order that the respondent place on packets ofits cigarettes, its advertising and marketingmaterials, and at all its advertising and marketingevents, warning labels or signage, with suchwording, graphics, size and placement as in thecourt’s determination, are sufficient to fully andadequately inform consumers of its cigarettes ofthe full risks to their health.

The application was supported by the affidavit of Mr.Philip Karugaba the representative of TEAN. Theaffidavit sets forth a number of grounds for theapplication. The grounds are very many and varied.The conclusive complaint is contained in ground (1),which is that “the respondent as a manufacturer of adangerous product is under a legal duty to fully andadequately warn consumers of its product of full extentof risks associated therewith.

So far the background I have given to MiscellaneousApplication No.70 of 2002 suffices for a ruling onmiscellaneous application No. 27 of 2003, whichchallenges the said Application No. 70 of 2002.

Application No. 27 of 2003 was brought by notice ofmotion under order 6 rule 29 and order 48 rule 1 of theCivil Procedure Rules. It was filed by British AmericanTobacco Uganda Limited (BAT), the respondent inApplication No.70 of 2002. BAT relies on a numberof questions, which are as follows:

“(a) Whether Article 22 of the Constitution,which prohibits the “intentional” taking of life,can be interpreted to apply to an alleged failure

of a manufacturer of a commercial product towarn consumers or potential consumers ofpossible health risks associated with the use ofthe product.”

(b) “Whether Article 22 of the Constitution iscapable of being violated by private conductin the circumstances of this case, namely, analleged failure of a manufacturer to warnconsumers of potential health risks associatedwith the use of its product.”

(c) “Whether Article 50(2) of the Constitutionauthorizes the filling of constitutional actionson grounds of “public interest” by privatepersons or it is confined to the bringing ofordinary representative actions to stop actualviolations of human rights of specific personsor groups.”

(d) “ Whether Article 50(2) of the Constitutionauthorizes the filling of “Class actions” as aforum of representative action or is confinedonly to representation of specific andidentifiable persons or groups.”

(e) “Whether Article 50(2) of the Constitution,which permits any person or organization tobring an action as representative of otherpersons or groups for violation of their humanrights can be interpreted to excuse compliancewith the procedural requirements applicable torepresentative actions generally, such as thenecessity to leave of court prior to filling theaction.”

It seems to me that the above 5 questions arestraightforward and therefore they requirestraightforward answers. I will therefore deal with themin the order they have been put.

Clearly, Article 22(11) of the Constitution prohibitsdeprivation intentionally of a person’s life. It followstherefore that whoever wants to bring an action underthis provision must first have his right either beenviolated or being violated or about to be violated, andsuch violation must be intentional; in which case theaction brought must allege violation, past, present orimminent. He must also allege the intention to violate.He must, pursuant to order 6 rule 2 of the CivilProcedure Rules, plead the particulars of the violationas well as of the intention to violate. That is, in otherwords, he must specially plead the two with the viewto specifically prove them.

11

In the application No. 70 of 2002, TEAN alleges failureof British American Tobacco Uganda Limited -BATUL to adequately inform the smokers of theirproduct i.e. tobacco of the dangers of smoking. In factthe application is brought by TEAN as a public interestlitigator bringing the action on behalf of consumersand potential consumers of the cigarettes manufacturedby BATU, the respondent. The question is whetherTEAN’S action was appropriately brought underArticle 50(2) of the Constitution or whether it is not aproper action in tort, which should have been brought,or negligence.

I now come to the import of the first question, whichchallenges the validity of bringing Application No.70of 2002 under Articles 22(1) and 50(2) of theConstitution. That the application should allege,(specially plead, with particulars) the intention todeprive the life of the litigant is central to the question.Failure to make full disclosure of the dangers or risksof smoking cigarettes to the consumers of the cigarettesseems to be too remote to taking away of the life ofsuch consumers. It seems to me that failure to disclosesuch dangers may have alternative intentions, such asnot to demote the business of selling cigarettes; toattribute intention to kill such failure would call forstrict, if not impossible proof. I think that ApplicationNo.70 of 2003 should be a tortious action. I wouldalso hold that to the extent that it alleges failure todisclose information about the dangers of smoking andremoteness of such failure to the taking away of thelife of the litigants as well as failure to specially pleadthe intention to take away such life, I do strike theapplication out as showing no cause of action.

A lot of argument was made to state that Article 50(2)of the Constitution cannot have envisaged publicinterest litigation to be brought by bodies or groupssuch as TEAN. In fact it was argued that the Articlediffers from section 38 of the South AfricanConstitution. Mr. Byenkya for BATU vehementlyargued that whereas the South African Constitutioncaters for the interest group litigation under sub-section(d) of section 38, namely “any one acting in thepublic interest”, no such provision can be read intoArticle 50(2) of our Constitution. He argued that toread such provision into the words of Article 50(2) ofour Constitution “any person or organization” and“person’s group of person’s” would amount tointerpreting the Constitution. He went as far as askingthis court to refer to the matter to the ConstitutionalCourt under Article 137 of the constitution because,he argued, it would be the Constitutional Court to havethe competence to interpret the Constitution. With duerespect, I find nothing in the interpretation of the words

“person or organization” and “person’s or group ofpersons” which this court cannot interpret and whichmust be referred to the Constitutional Court.

It is elementary that “persons”, “organizations” and“groups of persons” can be read in article 50(2) of theConstitution to include “public interest litigants”, aswell as all the litigants listed down in (a) to (e) ofSection 38 of the South African Constitution. In fact,the only difference between the South Africanprovision (i.e.Section 38) and our provision (underArticle 50(2) is that the former is detailed and the latteris not. That is my considered view based on the realitythat there are in our society persons and groups ofpersons whose interest is not the same as the interestof those who Lord Diplock referred to as “spirited”persons or groups of persons who may feel obliged torepresent them i.e. those persons or groups of personsacting in the public interest. To say that our constitutiondoes not recognize the existence of needy andoppressed persons and therefore it cannot allow actionsof public interest groups to be brought on their behalf isto demean the Constitution. It has been argued thatOrder 1 rule 8 of the Civil Procedure Rule should applyto such needy persons, but Order 1 rule 8 is concernedwith” persons having the same interest in one suit.”The needy persons and the public interest grouppersons would have not the same interest in one suit.Then there is rule 7 of statutory Instrument 26 of 1992which commands that the procedure under actionsbrought under Article 50 (2) of the Constitution shouldshow the ordinary rules of procedure. Since actions inrepresentative suits under Order 1 rule 8 of the CivilProcedure Rules cannot be brought by public interestgroups, then there is a lacuna which can be filled byrecourse to Article 273 of the Constitution whichprovides that:

“(1) Subject to the provisions of this article,the operation of the existing law after thecoming into force of this constitution shallnot be affected by the coming into force ofthis Constitution but the existing laws shallbe construed with such modificationsadaptations, qualifications and exceptions asmay be necessary to bring it into conformitywith this Constitution.” (Underlining addedby me for emphasis).

I think it is pertinent also to quote Article 273(2) whichgives the definition of “Existing law” to includeStatutory Instrument No.26 of 1992 and Order 1 rule8 of the Civil Procedure Rules. It states that:

“For the purposes of this Article, theexpression ‘existing law’ means the written

12

and unwritten law of Uganda or any part ofit as existed immediately before the cominginto force of this Constitution, including anyAct of Parliament or Statute or Statutoryinstrument enacted or made before that datewhich is to come into force on or after thatdate.”

Having thus held, can it reasonably be argued that onlythe litigants in (a), (b),(c) and (e) of section 38 of theSouth African Constitution are catered for in ourConstitution, Article 50(2)? To hold thus would, in myconsidered opinion, be tantamount to the argument thatour provision does ignore the type of persons or groupswho cannot bring an action in their own right. Suchpersons or groups include children, the illiterate anddisabled, who cannot access courts to contest violationsof their rights and these are the persons who need theassistance of public litigation groups, and who, in anycase, fall within Article 50(2) of the Constitution as Ihave held.

In this regard, I do not agree at all with CounselByenkya’s argument that no distinction can be drawnbetween these groups of persons and the group ofpersons represented or purported to be represented byDr. Rwanyarare & Others in Constitutional PetitionNo.11 of 1997 (Dr. James Rwanyarare & Anor –vs.-Attorney General).

The distinction is quite obvious. Dr. Rwanyarare andanother were representing the group described in theapplication as “specific and identifiable existingpersons or groups.” Such group is the one referred toas the Uganda Peoples Congress. With due respect,the Constitutional court at pp.21 and 22 of thejudgement in the Rwanyarare, case cannot have beentalking about the type of persons or groups of personsI have referred to above namely, the children, thedisabled and the illiterates. These are persons whocannot be served under order 1 rule 8 of the CivilProcedure Rules; the reasons being that they are noteasily identifiable; they cannot be served as they wouldhave no capacity to respond with a view to requestingto be joined in the action and there is no similar interestwith those who represent them. They only need theinterest groups to represent them. To say that eitherthese people are lumped together with the members ofRwanyarare’s interest or that they do not fall underthe Constitution in Article 50(2) of the Constitution isto belittle the foresight of the framers of theConstitution.

In my view of the legal issues raised by Mr. Byenkya’ssubmission will still discuss the rest of the questions

put. I think, however, that I have already discussedquestion number 2, namely, that the action as broughtin application No. 70 of 2002 cannot be based onArticle 22(1) of the constitution. The answer toquestion, (b) is in the negative.

Question (c) is "whether Article 50(2) of theConstitution authorizes the filling of Constitutionalactions on grounds of “public interest” by privatepersons or is confined to the bringing of ordinaryrepresentative actions to stop actual violations of thehuman rights of specific persons or groups.

I would be repeating myself if I stated again thatrepresentative actions are not restricted to actionsbrought by persons or groups who have similar interestin the actions i.e. "numerous persons having the sameinterest in one suit” (order 1 rule 8): There arerepresentative actions which can be filed by publicinterest litigation persons or group of persons such asTEAN. These are the persons mentioned in (d) ofsection 38 of the South African Constitution (andArticle 50(2) of our Constitution), as “any one actingin the public interest”.

I have already stated that Article 50(2) of theConstitution cannot be said not to envisage the personsand groups of persons mentioned in subsection (d) ofsection 38 of the South African Constitution andtherefore (d) can read in our Article 50(2) of theConstitution. I have given the example of thebeneficiaries of (d) of the South African Constitutionand said that as long as they exist in Uganda, theycannot be said to be ignored by our Constitution. I seesuch beneficiaries as the silent sufferers of violationof human rights. They are deprived, incapable whorequire volunteer public interest litigating groups. Thequestion of who would pay the costs raised by theConstitutional Court in the Rwanyarare petition doesnot arise because of the reasons I have given in supportof their inability and inaccessibility to answer summonswere such summons served in the manner provided byOrder 1 rule 8 of the Civil Procedure Rules. Thelitigating public interest persons or groups would meetthe costs and the litigating public interest persons orgroups would meet other expenses of actions on theirbehalf. I would go further and say that Article 50(2) ofthe Constitution authorized both public interestlitigation by private persons, as it does authorizelitigation through ordinary representative actions tostop actual violations of the human rights of specificpersons and groups. If for instance an individualsubjects a person to torture, cruel, inhuman ordegrading treatment or punishment, such persons

13

would have recourse to court under Article 50(2) ofthe constitution.

The 4th question is whether Article 50(2) of theConstitution authorizes the filling of ‘Class action’ asa form of representative action or is confined only torepresentation of specific and identifiable existingpersons or groups.” I know I would be repeatingmyself. Suffice it to say that as long as that class ofspecific and identifiable existing persons or groupsdoes not contain the group of children, illiterates, thepoor and the deprived, then my answer would be thatthe question is unfair and inconsiderate. It all dependstherefore on what one means by specific andidentifiable existing persons or groups’. I should againquote order 1 rule 8 of the civil Procedure Rules todrive home my argument.

The rule provides that:

“ Where there are numerous persons havingthe same interest in one suit, one or more ofsuch persons may, with the permission of thecourt, sue or be sued, or may defend in suchsuit, on behalf of or for the benefit of allpersons so interested. But the court shall insuch case give notice of the institution of thesuit to all such persons either by personalservice or, where, from the number of personsor any other cause, such service is notreasonably practicable, by publicadvertisement, as the court in each case maydirect.”

There are crucial expressions in this order, whichdetermine answers to the question put. Suchexpressions are:

• Numerous persons having the same interest• May sue or be sued or may defend in such suit.• Personal service or by public advertisement.

It is inevitable that I refer once again to the petition ofDr. James Rwanyarare & another –vs.-AttorneyGeneral (Petition No.11 of 1997). Dr. Rwanyarare &another in that petition had similar interest with fellowU.P.C. members. They could therefore sue on behalfof the fellow members of UPC, and naturally andlogically order 1 rule 8 should apply. The same shouldapply, say to members of a football club, of a golf clubor of a trade union. But the question is, can the ruleapply to groups of people who, because of inability orincapability, engendered by say, ignorance, poverty,illiteracy, infancy etc., cannot sue or be sued or defend

a suit for the simple reasons that apart from beingindigent, they cannot even identify their rights or theirviolations. These are the groups who badly need theservices of the “public interest groups” like TEAN tobring action on their behalf under what paragraph 38(d) of the South African Constitution is referred to as“public interest persons,” but who have no similarinterest in the action with those they represent.

It cannot be denied that such group of persons aboundin our society and we cannot hide our heads in thesand by saying that the Constitution does not expresslymention them and therefore they must be excludedfrom the Constitutional provision regarding recourseto remedies when their rights are violated. It is to beremembered that such groups cannot be served eitherdirectly or indirectly. They have neither postal addressnor telephones. Their fate depends entirely on thepublic interest litigation groups or persons and theyare not personally identifiable; yet they exist and canbe identified only as a group or groups. The constitutioncannot escape from authorizing representative action,without interest sharing with those who represent them.That is why article 273 of the Constitution becomeshandy because the rules of procedure are, in thisrespect, rendered inoperable by the Constitution.

Needless to say that it would be illogical to argue thatactions brought by such persons or groups of personsfor the redress of the violation of their inalienable rightsshould be governed by the procedure under order 1rule8 of the Civil Procedure Rules. The procedurecannot govern them simply because they do not sharethe concerns of violating their rights with those whobring action on their behalf. The 5th question whichis:

“Whether Article 50(2) of the Constitution,which permits any person or organization tobring an action as the representative of otherpersons or groups for violation of their humanrights can be interpreted to excusecompliance with the procedural requirementsapplicable to representative actionsgenerally, such as the necessity to seek leaveof court prior to filling the action.”

This question must have been motivated by theillusions that representative actions must be broughtonly by persons and groups of persons who share thesame interest in the action (i.e. suit) with the personsand the groups they represent in the action. Once it isclear, and I hope now it is, that there exists that groupof persons who need not necessarily have the same

14

interests with those who institute actions on theirbehalf, then question number 5 of this application doesnot arise.

Before I take leave of this application, I feel obliged tocomment on some of the applicant’s sought after reliefin Application No.70 of 2002. Prayer number 3, forinstance, seeks “An order that the Respondent placeon packets of cigarettes, its advertising and marketingevents, warning labels and signage, with such wording,graphics, size and replacement as in the court’sdetermination, are sufficient to fully and adequatelyinform consumers of its cigarettes of the full risks totheir health.”

With due respect, this prayer is asking too much fromthe court. The court cannot determine fully andsufficiently the kind of information to be included inthe desired labels and publication. It simply does nothave the expertise to do so; and in fact, the way the

prayer is couched, it imposes on the court a duty itcannot discharge. It was up to the applicant to presentthe court with the information it required for the courtto consider. The application is unclear andembarrassingly ambiguous and could not pass the test.But I hasten to add such consideration would not fallunder the preview of application number 27 of 2003.It would have been a consideration during the hearingof application number 70 of 2002 which I have, in anyevent, struck out with costs to the applicant in thepresent application.

J.H.NTABGOBAPRINCIPAL JUDGE16/04/2003

The ruling is read in presence of Mr. Karugaba andMr. Byenkya. Also present is Mr. Richard Wejuri,Company Secretary of BAT and Mr. Edward Karugaho,Court Clerk.

15

R U L I N G

On 10th September 2001 the Attorney General andNational Environment Management Authority(NEMA), herein to be referred to as the applicants,filed Miscellaneous Application No. 609 of 2001 inthis Court but headed “In the Court of Appeal ofUganda at Kampala” but they did not accompany itwith a supporting affidavit. For the omission toaccompany it with an affidavit, Mr. Oluka has informedCourt that he had inadvertently made the omission.

With regard to the heading “In the Court of Appeal ofUganda” which I should have thought Counsel couldhave verbally applied to amend on 19/9/2001 whenthe application instead made the followingapplication:-

“The respondents were not served. I justdiscovered it now. So it is clear we did notserve them. I also want to amend so that theapplication is in the High Court and not inthe Court of Appeal.”

He did not apply for leave to amend. I granted him theadjournment as applied for in the following words:-

“Hearing is adjourned to 17/10/2001”.

The learned State Attorney rather than amend, wentahead to file a fresh application for leave to appeal tothe Court of Appeal, which this time he dulyaccompanied with a supporting affidavit. He filed iton 15th October 2001.

On 17/10/2001 when the application was called forhearing, Mr. Karugaba Phillip, learned Counsel for theEnvironmental Action Network Ltd., the respondent,raised a preliminary objection to the effect that theapplication was time barred because it was not broughtwithin 14 days as required under Rule 39(2)(a) of the

Court of Appeal Rules which provides that:-

“(a) Where an appeal lies with leave of theHigh Court, application for the leave shall bemade informally at the time when the decisionagainst which it is desired to appeal is given;or failing that application or if the Court soorders, by notice of motion within fourteendays of the decision.”

My decision against which it is desired to made on 28/9/2001 and the learned State Attorney did not thenmake any informal application for leave to appeal. Ofcourse he was absent even though he had been notifiedof the date of reading the decision. I agree with himwhen he argues that his earlier application filed “inthe Court of Appeal of Uganda at Kampala” was filedwithin the stipulated period of 14 days, but he withdrewit and instead of amending it, brought a freshapplication which was filed late.

Learned State Attorney may be right when, basing onthe wording of Rule 3 of Order 48 of the CivilProcedure Rules, he argues that his application “in theCourt of Appeal of Uganda at Kampala” was properwithout a supporting affidavit. I agree with him onthat argument in view of the wording of the rule whichimplies that a notice of motion not grounded onevidence by affidavit may be proper. However, hisargument seems to shoot him in the arm when he arguesthat the present application is the same as the one filed“in the Court of Appeal of Uganda..” since the presentone has a supporting affidavit. I should, in fact, mentionthat he had no authority to amend his applicationwithout the leave of the Court in view of the provisionof Order VI (as amended by Statutory Instrument No.26 of 1998) which in Rule 19 provides that:-

“A plaintiff may, without leave, amend hisplaint once at anytime within 21 days fromthe date of issue of summons to the defendant

THE ENVIRONMENTAL ACTION NETWORK LTD

VERSUS

ATTORNEY GENERAL AND THE NATIONAL ENVIRONMENTMANAGEMENT AUTHORITY (NEMA) (1)

(HC. Misc, Applic. No. 39 of 2001)

High Court Kampala (The Principal Judge , Mr. Justice J.H. Ntabgoba): November 6th 2001

16

or, where a Written Statement of Defence isfiled, then within 14 days from the filing ofthe Written Statement of Defence or the lastof such written statements.”

In this case, even assuming that the application filed“in the Court of Appeal of Uganda…” was properlyfiled and therefore amended by the one filed on 15thOctober 2001, there is no sign that it was served onthe respondent, although to be fair to the applicants,the respondent must have received the notice of motion.The point I am making, however, is that it did neithercomply with the 21 days or the 14 days provided inOrder 6 Rule 19 (as amended by S.I. No. 26/98). Andno leave is shown to have been sought to amend.

The learned State Attorney then makes a mistake whenhe argues that his application was on a point of law.His application was to enable him to challenge thiscourt that it failed to refer to an authority of the decisionin the Rwanyarare petition and that the Court shouldhave held that Misc. Application No. 39/2001 was anullify in so far as the applications therein should have

sought the permission of the Court to represent thepublic.

A part from my decision that in public interest litigationthere was no need to follow order 1 rule 8 of the CivilProcedure Rules, as also there was no requirement tosue under Act 20 of 1969, I see nothing being a pointof law being sought to be appealed against. I think theappeal sought was on a point of fact, namely, thealleged failure of the Court to follow the Rules ofprocedure. But this is a by the way. The fact is thatneither did the applicants file the amendment withinthe stipulated period nor did they seek leave of thecourt to amend outside that period.

It is in light of the above that I struck out the application(amendment) and promised to give these reasons insupport of my decision.

J.H. NTABGOBA.PRINCIPAL JUDGE6/11/01

17

On the 31st May 2001 an application by notice ofmotion was filed in this court by a limited liabilitycompany called The Environmental Action NetworkLtd. Herein referred to as the applicant. In the affidavitof Phillip Karugaba sworn in support of the application,he described the applicant as a public interest litigationgroup bringing the application bona fide in its ownbehalf and on behalf of the non-smoking members ofthe public under Article 50(2) of the Constitution, toprotect their rights to a clean and healthy environment,their right to life and for the general good of publichealth in Uganda.

The respondents brought preliminary objections whichare put in the issues there above.

HELD

a) The veracity and credibility of evidence ischallenged during the hearing when such evidenceis adduced and not preliminary objection. Thispreliminary objection is over ruled basing on theevidence the applicant seeks to adduce byaffidavits.

b) Application brought under Article 50 of theConstitution are governed by the fundamentalrights and freedoms (enforcement procedure) Rule(S.I No. 26/92) therefore the objection that theapplication did not comply with S.I of Act No. 20of 1969 (as amended) is over ruled

c) Order 1 Rule 8 of the Civil Procedure Rulesgoverns actions by or against the parties (i.eplaintiff or defendant) together with other parties,that they seek to represent, and they must havesimilar interest in the suit. On the other hand,Article 50 of the constitution doesn't require thatthe applicant must have the same interest as theparties he or she seeks to represent or for whosebenefit the action is brought. Therefore objection(c) is overruled.

d) The preliminary objections raised on behalf of theAttorney General and NEMA, the respondents areoverruled. And they are ordered to pay costs forthe consequent delay in hearing the mainapplication.

RULING

On the 31st May, 2001 an application by notice ofmotion was filed in this Court by a Limited LiabilityCompany called The Environmental Action NetworkLtd. I will herein refer to it as the applicant. In theaffidavit of Phillip Karugaba sworn in support of theapplication, he describes the applicant as a PublicInterest Litigation group bringing the application bonafide in its own behalf and on behalf of the non-smokingmembers of the public under Article 50(2) of theConstitution, to protect their rights to a clean andhealthy environment, their right to life and for thegeneral good of public health in Uganda.

THE ENVIRONMENTAL ACTION NETWORK LTD.

VERSUS

THE ATTORNEY GENERAL & THE NATIONAL ENVIRONMENTMANAGEMENT AUTHORITY (NEMA) (2)

(HC. Misc. Applic. No. 39 of 2001)

High Court Kampala (The Hon. P. J – Mr. Justice J. H. Ntabgoba) : August 28th 2001

Evidence: whether evidence that smoking in public was hearsay

Evidence: whether experts were essential in establishing the effects of public smoking as provided forin Section 43 of the Evidence Act

Civil Procedure: whether the Attorney General and NEMA ought to have been given 45 days notice as providedfor in S.1 of Act No. 20 of 1969 (as amended)

Civil Procedure: whether the application ought to have been brought under Order 1 Rule 8 of the CPR

18

Mr. Karugaba depones that he has recently learnt ofseveral medical reports highlighting the dangers ofexposure to second hand smoke or environmentaltobacco smoke. He sets out various reports which hesays have highlighted the dangers of exposure tosecond hand smoke or environmental tobacco smoke.They include:

The United States Surgeon General’s Report: “TheHealth consequences of Involuntary Smoking (1986)which contains the following conclusions:

• involuntary smoking is a cause of disease, includinglung cancer, in healthy non-smokers;

• the children of parents who smoke compared with children of non-smoking parents have increased

frequency of respiratory infections, increasedrespiratory symptoms and slightly smaller rates ofincrease in lung functions as the lung matures;

• the simple separation of smokers and non-smokerswithin the same air space may, reduce, but noteliminate the exposure of non-smokers toenvironmental tobacco smoke (ETS).

The United States Environmental Protection Agency(EPA) Report: Respiratory health effects of passivesmoking: Lung cancer and other disorders in children(1992) made the following major conclusions:

• that based on the weight of the available scientificevidence, exposure to Environmental TobaccoSmoke presents a serious and substantial healthimpact;

• Environmental Tobacco Smoke is a human lungcarcinogen, responsible for approximately 3,000lung cancer deaths annually in non-smokers;

• Environmental Tobacco Smoke exposure is usuallyassociated with increased risk of lower respiratoryinfections such as bronchitis, pneumonia. 150,000to 300,000 cases annually in infants and youngchildren up to 18 months of age are attributed toETS;

• Environmental Tobacco Smoke is casuallyassociated with increased prevalence of fluid in themiddle ear, symptoms of upper respiratory tractirritation and small but significant reduction in lungfunction;

• Environmental Tobacco Smoke exposure iscasually associated with additional episodes andincreased severity of symptoms in children withasthma 200,000 to 1,000,000 asthmatic childrenhave their condition worsened by exposure toEnvironmental Tobacco Smoke;

• Environmental tobacco smoke is a risk factor fornew cases of asthma in children who have not

previously displayed symptoms;• Environmental Tobacco Smoke is classified as a

Group A Carcinogen under EPA’s Carcinogenassessment guidelines. This classification isreserved for those compounds or mixtures, whichhave been shown to cause Cancer in humans, basedon studies in human populations and for which nosafe level of exposure is known.

The National Health and Medical Research CouncilReport: “the Health Effects of Passive Smoking: AScientific Information Paper” concludes that:

• Passive smoking contributes significantly to the riskof Sudden Infant Death Syndrome;

• Children Exposed to Environmental TobaccoSmoke are about 40% more likely to suffer fromasthmatic symptoms than those who are notexposed;

• About 8% of childhood asthma is attributed topassive smoking (about 46,500 children per year);

• The risk of heart attack or death from coronary heartdisease is about 24% higher in people who neversmoke but who live with a smoker, compared tounexposed people who never smoke;

• People who never smoke and live with a smokerhave a 30% increase in risk of developing lungcancer compared to people who never smoke andlive with a smoker, to about 12 new cases of lungcancer and 11 deaths from lung cancer per yearwho never smoke”.

I would stop here but suffice it to say that PhillipKarugaba, in his affidavit gave many more detailsabout the dangerous effects of passive smoking.

I would myself hesitate to challenge his avermentsbecause they are supported by research reports andscientific disclosures.

In paragraph 17 of his affidavit he depones that “ non-smoking Ugandans have a constitutional right to lifeunder Article 22 and constitutional rights to a cleanand healthy environment under Article 39 of theConstitution of the Republic of Uganda."

In paragraph 18 of the affidavit he refers to the UnitedNations Convention on the Rights of the Child, towhich Uganda is a signatory and states that “ childrenhave rights to adequate standards of health underArticle 24, a right to life under Article 6 and a right toan adequate standard of living under Article 27.” Headds in paragraph 19 of the affidavit that “accordingto a recent report, “Tobacco and Children’s’ rights”released by the World Health Organization, exposure

19

to second hand smoke is an infringement of a child’sright to life and to an adequate standard of health.”

Mr. Karugaba concludes that “ the said rights of non-smokers and the rights of the children are beingthreatened by the unrestricted practice of personssmoking in public places”. (See paragraph 20 of theaffidavit).

It is in light of the above that this application seeksfrom this Court the following declarations and orders:A declaration that smoking in public places constitutesa violation of the rights of non-smokers to a clean andhealthy environment as prescribed under Article 39 ofthe Constitution of the Republic of Uganda and s. 4 ofthe National Environment Statute 1995.

If I may comment on this declaration being sought,my view is that it is too sweeping. It could have beenworded thus:

1) “A declaration that unregulated smoking in publicplaces constitutes a violation of the rights of non-smoking members of the public; and that therespondents should take appropriate measures toregulate smoking in public places so as to providea clean and healthy environment to the non-smokingmembers of the public.”

2) A declaration that smoking in public placesconstitutes a violation of the rights of the non-smoking members of the public to the right to lifeas prescribed under Article 22 of the Constitutionof the Republic of Uganda.

Here again I thought that the wording of the prayershould have been that “ Un- regulated smoking inpublic places violates the right to life of non-smoking members of the public contrary to Article22 of the Constitution."

3) A declaration that smoking in a public placeconstitutes an offence under Ss. 156 and 172 of thePenal Code.

4) An order that the 1st Respondent (i.e. The Attorney-General) take steps to ensure the prosecution ofpersons committing offences under sections 156and 172 of the Penal Code Act.

5) An order that the second respondent takes thenecessary steps to ensure the enjoyment by theUgandan public of their right to a clean and healthyenvironment.

It is pertinent, at this juncture, to point out that in myruling of 17/07/2001, I struck out prayers 3 and 4 ofthis application on the ground that smoking in publicis not a crime either under the Penal Code Act or underany of our statutes, and Courts have no jurisdiction tocreate crimes or criminalise any acts. Nor do Courtspossess any powers to order prosecution, which is thepower strictly reserved for the Director of PublicProsecution.

This present ruling is on several preliminary objectionsraised by Mr. Oluka Henry, a State Attorney whichappear in paragraph 8 of his Additional Affidavit inReply sworn on the 18th July, 2001. I will do no betterthan extract the entire paragraph:

“That the Respondent will at the hearing ofthis application raise preliminary objectionsseeking to declare that the applicant has nocause of action, that the evidence on theaffidavit in support is based on hearsay; thatthe applicant company is not an expert on theeffects of secondary cigarette smoke; that theapplicant cannot claim to represent theUganda public and that no notice that thepresent suit would be filed against therespondents was filed as provided for in theCivil Procedure and Limitations (Miscellaneous Provisions) Act as amendedof 1969 and the Civil Procedure andLimitation (Miscellaneous Provisions)(Amendment) Act 2000.”

Paragraph 8 of Mr. Oluka’s affidavit raises thefollowing issues which I must discuss in this ruling:

• That the evidence on the affidavit in support ofapplication No. 39/2001 is based on hearsay.

• That the applicant company is not an expert onthe effects of secondary cigarette smoking.

• That the applicant company cannot claim torepresent the Ugandan public. (Here I supposeMr. Oluka is referring to the non-smokingmembers of he Ugandan public).

• That the applicant (suit) did not comply with theprovision S. 43 of the Evidence Act. The sectionis about persons who give opinion on foreign law,or science or art etc. as experts.

In some situations Court may wish to call such expertsto give opinion, but in some other situations the Courtcould take Judicial notice of the opinions withouthaving to necessarily call them. I, however, agree withCounsel for the applicant that even if it was compulsory

20

for experts mentioned in S. 43 of the Evidence Act totestify, that would not be necessary with regard toevidence produced by affidavit because that is theimport of S. 2 of the Evidence Act.

Besides, Mr. Oluka’s preliminary point in which hebrands the documentary presentation, by affidavit, ofscientific findings and reports, is premature andtherefore misplaced. The veracity and credibility ofevidence is challenged during the hearing when suchevidence is adduced and not preliminary objection. Iwould overrule this preliminary objection based onthe evidence the applicant seeks to adduce byaffidavits.

I will now deal with another preliminary objection byMr. Oluka where he challenges the application on theground that it did not comply with s. 1 of Act No. 20of 1969 (as amended), which requires the Attorney-General and specified corporations, including NEMA,to be given a notice of intention to sue of 45 days.Here again, with due respect, Mr. Oluka’s objection ismisconceived and should be overruled. Applicationsbrought under Article 50 of the Constitution aregoverned by the Fundamental Rights and Freedoms(Enforcement Procedure) Rules (S.I. No. 26/92).Although Rule 4 provides that no motion (under Rule3) shall be made without notice to the Attorney-Generaland any other party affected by the application, Rule 7clearly stipulates that “subject to the provisions ofthese Rules, the Civil Procedure Act and the Rulesthereunder shall apply in relation to application.”

Applying the so called golden rule of StatutoryInterpretation, we would be wrong if we assumed thatbesides Rule 7 of S.I. No. 26 of 1992, Parliament meantthat any other rule of procedure should be applied. Itis for this reason that I think that applications pursuantto Article 50 of the Constitution must be strictlyrestricted to the Civil Procedure Act and the rulesthereunder and not under S.1 of Act No. 20 of 1969.The Attorney-General and NEMA in this applicationtherefore got the notice they are supposed to get.Incidentally, this was also the decision in Rwanyarare& 4 others Vs. Attorney-General (High CourtMiscellaneous. Application No. 85 of 1993). If therationale for applying the Civil Procedure Act and theRules thereunder instead of S.1. of Act 20 of 1969, theCourt has this to say:

“The object of S. 80 is to give the Secretary ofState for India an opportunity of settling theclaim, if so advised, without litigation or, toenable him to have an opportunity to investigatethe alleged cause of complaint and to make

amends, if he thought fit, before he wasimpleaded in the suit.”

I agree with this requirement that the respondent,usually Government or a Scheduled Corporation whichis supposed to be busy as Government, needs sufficientperiod of time to investigate a case intended to bebrought against it so as to be able to avoid unnecessaryexpense on protracted litigation. This rationale cannotapply to a matter where the rights and freedoms of thepeople are being or about to be infringed. The peoplecannot afford to wait 45 days before pre-emptive actionis applied by Court. They would need immediate andurgent redress. They need a short period which is oneprovided under the ordinary rules of procedureprovided by the Civil Procedure Act and its Rules. Todemand from the aggrieved party a 45 days notice isto condemn them to infringement of their rights andfreedoms for that period which this Court would notbe prepared to do. Any alleged infringement must beinvestigated expeditiously before damage is done.

Other preliminary objection raised by the learned StateAttorney is that the applicant cannot claim to representthe Ugandan Public and therefore they should havebrought the application under Order 1 Rule 8 of theCivil Procedure Rules which demands that:

8(1) Where there are numerous persons havingthe same interest in one suit, one or more ofsuch persons may, with the permission of theCourt, sue or be sued, or may defend in suchsuit, on behalf of or for the benefit of all personsso interested. But the Court shall in such casegive notice of the institution of the suit to allsuch persons either by personal service or,where, from the number of persons or any othercause, such service is not reasonablypracticable, by public advertisement, as theCourt in each case may direct”.(2) Any person on whose behalf or for whosebenefit a suit is instituted or defended undersub-rule (1) may apply to the Court to be madea party to the suit.”

Here again the State Attorney failed, in his preliminaryobjection, to distinguish between actions brought in arepresentative capacity pursuant to Order 1 Rule 8 ofthe Civil Procedure Rules, and what are called PublicInterest Litigation which are the concern of Article 50of the Constitution and S.I. No. 26 of 1992. The twoactions are distinguishable by the wording of theenactments or instruments pursuant to which they areinstituted. Order 1 Rule 8 of the Civil Procedure Rulesgoverns actions by or against the parties (i.e. plaintiff

21

or defendant) together with other parties that they seekto represent, and they must have similar interests inthe suit. On the other hand, Article 50 of theConstitution does not require that the applicant musthave the same interest as the parties he or she seeks torepresent or for whose benefit the action is brought.

The wording of Article 50 of the Constitution,especially clauses (1) and (2) clearly show what I amsaying. It is instructive to quote them: -

“50 (1) Any person who claims that afundamental or other right or freedomguaranteed under this Constitution has beeninfringed or threatened, is entitled to apply to acompetent Court for redress which may includecompensation.(2) Any person or organization may bring anaction against the violation of another person’sor group’s human rights.”

Clause (2) answers Mr. Oluka’s argument that theapplicant in this application cannot claim to representthe Ugandan non-smoking public. There are alsodecided cases which decided that an organization canbring a public interest action on behalf of groups orindividual members of the public even though theapplying organization has no direct individual interestin the infringing acts it seeks to have redressed. In thecase of RE. –Vs-. I.R.C. Exp. Federation of Self-Employed (H.L. (E)) [1982] A. C. 643, Lord Diplocksaid: -

“It would , in my view, be a grave lacuna inour system of public law, if a pressure group,like the federation or even a single public –spirited tax payer, were prevented by out-dated technical rules of locus standi, frombringing the matter to the attention of theCourt to vindicate the rule of law and get theunlawful conduct stopped”. (See also [1901]2 All. E.R. 93 at p. 107]”.

In his rather politico-judicial reasoning to supportpublic interest litigation on behalf of the poor, indigentand unprivileged members of the Tanzanian Societyby Public spirited organizations such as TheEnvironmental Action Network Ltd., Rugakingira, J.of the High Court of Tanzania (as he then was) hadthis to say in the case of Rev. Christopher Mtikila –Vs- The Attorney General in Tanzanian Civil Suit No.5of 1993 (unreported): -

“The relevance of public litigation in Tanzaniacannot be over-emphasized. Having regard to

our socio-economic conditions, these (sic)development promise more hopes to ourpeople than any other strategy currently inplace. First of all, illiteracy is still rampant.We were recently told that Tanzania is secondin Africa in wiping out illiteracy but that is astatistical juggling which is not reflected onthe ground. If we were that literate it wouldhave been unnecessary for Hanang DistrictCouncil to pass by laws for compulsory adulteducation which were recently published asGovernment Notice No. 191 of 1994. Byreason of this illiteracy a greater part of thepopulation is unaware of their rights, let alonehow the same can be realised.

Secondly, Tanzanians are massively poor. Our rankingin the World on the basis of per capita income haspersistently been the source of embarrassment. Publicinterest litigation is a sophisticated mechanism whichrequires professional handling. By reason of limitedresources that the vast majority of our people cannotafford to engage lawyers even where they are awareof the infringement of their rights and the perversionof the Constitution. Other factors could be listed outbut perhaps the most painful of all is that over the yearssince Independence Tanzanians have developed aculture of apathy and silence. This, in large measure isa product of institutionalized mono-party politicswhich, in its repressive dimension, like detentionwithout trial supped up initiative and guts, the peoplefound contentment in being receivers without beingseekers. Our leaders very well recognize this, and theemergence of transparency in governance they havenot hesitated to affirm it. When the National Assemblywas debating Hon. J. S. Warioba’s private motion onthe desirability of a referendum before some featuresof the Constitution were tampered with, Hon. Sukwasaid Sukwa, after the interruptions by his colleagues,continued and said ——-

“ Given all these and other circumstances, ifthere should spring up a public-spiritedindividual and seek the Court’s interventionagainst legislation or actions that pervert theConstitution, the Court, as guardian andtrustee of the Constitution and what it standsfor, is under an obligation to rise-up to theoccasion and grant him standing."

My understanding of Lugakingira J’s lengthy statementis that the interest of public rights and freedomstranscend technicalities, especially as to the rules ofprocedure leading to the protection of such rights andfreedoms. This is also the message in Lord Diplock’s

22

words cited above in [1901] 2 ALL E.R. 93 at p. 107.

If I may revert to Miscellaneous Application No. 39 of2001, the applicant say they are especially interestedin the infringement of the rights and freedoms of thepoor, and children – those who cannot know andappreciate their rights and freedoms and who do notknow where to go and how to go there for redress. It isnot compelling that a body like the applicant standsup for them and fights for their cause. I think theapplicant deserves hearing and I will hear it.

The preliminary objections raised on behalf of theAttorney-General and NEMA, the respondents, areoverruled –And they are ordered to pay costs for theconsequent delay in hearing the main application. Itshould be urgently fixed for hearing on merit. I so order.

J.H. NTABGOBAPRINCIPAL JUDGE28.08.01

23

RULING

This is a ruling on the application filed and argued onbehalf of the British American Tobacco Uganda Ltd.The application brought pursuant to Order 1 Rule 10(2)of the Civil Procedure Rules 5 and 7 of theFundamental Rights and Freedoms (EnforcementProcedure) Rules S.I No. 26 of 1992 as well as Order48 Rule 3 of the Civil Procedure Rules, seeks orderthat:

• the applicant be added as respondent to Miscellaneous Application No. 39 of 2001, and

• the costs of the application be provided for.

The grounds relied on by the applicant are as follows:

• That the respondent has filed MiscellaneousApplication No. 39 of 2001 under Article 50(1)and (2) of the Constitution seeking fordeclarations that smoking in Public Places is aviolation of the rights of non-smoking membersof the Public and that smoking in Publicconstitutes an offence.

• That the applicant was not made a party to thesaid application.

• That the orders sought by the respondent in thesaid application will be necessary in order for theCourt to effectually and completely adjudicateupon and settle all questions involved in theapplication.

The B.A.T application was supported by the affidavitof one Richard Wejuli-Wabwire who deponed that heis an advocate of this Court and the Company Secretaryof the applicant Company. His affidavit deponed tothe 4 grounds enumerated above and to nothing elsein addition.

In reply Mr. Phillip Karugaba who claims to be one ofthe applicant’s members deponed that:

• The application No. 39 of 2001 seeks only toprotect non-smoking members of the publicespecially vulnerable groups like women, childrenand workers in hospitality industry from theproven dangers of second hand smoke and passivesmoking;

• The focus of the main application is to controlonly the place of consumption of TobaccoProducts and is not targeted against B.A.T, theapplicant, its manufacturing, distribution or retailprocesses nor against its particular Customers;

• it is far-fetched to believe that if the respondentis successful in application No. 39 of 2001,B.A.T, the applicant will suffer gross financialconsequences or at all;

• the two respondents in application No. 39 of 2001do not contest the science on dangers of secondhand smoke and are according to their affidavitsin reply already working on measures to addressthe problem;

• there is nothing in the affidavit of the applicantto suggest that it contests the scientific basis onwhich the respondent seeks relief.

There were many other deponements in PhillipKarugaba’s affidavit including that: -There are othermanufacturers, importers, distributors and retailerswho may seek to be joined to the main application ifthe applicant is to be believed and becomes successful.

I must confess, I do not grasp the relevance of thisparagraph 9 of Phillip Karugaba’s affidavit because,even if the other manufacturers, importers, distributorsand retailers , in Uganda joined the application, Courtwould be able to entertain them. Except for this

BRITISH AMERICAN TOBACCO (U) LTD

VERSUS

THE ENVIRONMENTAL ACTION NETWORK LTD. (2)

(Arising out of Misc. Appl. No. 444 of 2001)

High Court, Kampala (Hon. The Principal Judge – Mr. Justice J.H. Ntabgoba): July 17th 2001

24

paragraph, however the rest of the deponents of PhillipKarugaba outlined in the paragraphs quoted above are,to a large extent true. Application No. 39 of 2001 isnot about declarations against the manufacture,importation, distribution and retailing of Tobacco inUganda. As Karugaba deponed, the thrust of theapplication is against smoking in public places and, ifyou like, it is against those who smoke in the Publicso as to injure or jeopardize the health of non-smokerslike children and other innocent passive smokers. Myreading of the application is that it seeks provision byNEMA and Government of places for smokers separatefrom those of non-smokers. This is acknowledged bythe respondent when they say that they are still workingon the modalities of redressing the situation, and thatthe application is premature.

Having said this, I should make it clear that the otherdeclarations and decisions sought in application No39 of 2001, namely, a declaration that smoking inPublic is a criminal offence contrary to sections 156and 172, are declarations which this Court would notbe competent to make. A criminal offence is a creatureof Statute and therefore, Court cannot declare an actcriminal unless a Statute makes it so. I agree reliefssought in paragraphs 3,4 and 5 of the application mustbe of concern to B.A.T. They are:

“3. A declaration that smoking in a public placeconstitutes an offence under S. 156 and 172 ofthe Penal Code;”

“4. An order that the 1st respondent take stepsto ensure the prosecution of persons committingoffences under Sections 156 and 172 of thePenal Code;”

“5. An order that the 2nd respondent take thenecessary steps to ensure the enjoyment by theUganda Public of their right to a clean andhealthy environment.”

As I told counsel at the hearing, a criminal offence is acreature of a Statute. Courts do not create criminaloffences and therefore it would not be within thecompetence of this Court to decide that smoking inPublic Places is a crime, as, indeed, it is not competentfor the Court to order the prosecution of persons whosmoke in Public. The power to prosecute vests in theDirector of Public Prosecution who is not subject toCourt orders in his decision to prosecute or not toprosecute.

Having then declined to adjudicate on the issues ofcriminality, my view is that the concerns of B.A.T areno longer valid or credible. It is for this reason that Idecided not to accommodate the application of B.A.Tto be joined as respondents in application No. 39 of2001. And having allayed the applicant’s fears that Iwould decline to decide on the issue of criminality ofsmoking in Public Places, Counsel for B.A.Tnevertheless forged ahead to argue the issues that didnot concern his client. It is for this reason that indismissing its application I awarded Costs against it.

The above are my reasons for dismissing thisapplication and for the award of Costs that I made.

J.H. NTABGOBAPRINCIPAL JUDGE

25

RULING

On 10th September 2001 the Attorney General andNational Environment Management Authority(NEMA), herein to be referred to as the applicants,filed Miscellaneous Application No. 609 of 2001 inthis Court but headed “In the Court of Appeal ofUganda at Kampala” but they did not accompany itwith a supporting affidavit. For the omission toaccompany it with an affidavit, Mr. Oluka has informedCourt that he had inadvertently made the omission.

With regard to the heading “In the Court of Appeal ofUganda” which I should have thought Counsel couldhave verbally applied to amend on 19/9/2001 whenthe application instead made the following application:

“The respondents were not served. I justdiscovered it now. So it is clear we did notserve them. I also want to amend so that theapplication is in the High Court and not in theCourt of Appeal.”

He did not apply for leave to amend. I granted him theadjournment as applied for in the following words:

“Hearing is adjourned to 17/10/2001.”

The learned State Attorney rather than amend, wentahead to file a fresh application for leave to appeal tothe Court of Appeal, which this time he dulyaccompanied with a supporting affidavit. He filed iton 15th October 2001.

On 17/10/2001 when the application was called forhearing Mr. Karugaba Phillip, learned Counsel for theEnvironmental Action Network Ltd., the respondent,raised a preliminary objection to the effect that theapplication was time barred because it was not broughtwithin 14 days as required under Rule 39(2)(a) of the

Court of Appeal Rules which provides that:

“(a) Where an appeal lies with leave of theHigh Court, application for the leave shall bemade informally at the time when the decisionagainst which it is desired to appeal is given;or failing that application or if the Court soorders, by notice of motion within fourteendays of the decision.”

My decision against which it is desired to made on 28/9/2001 and the learned State Attorney did not thenmake any informal application for leave to appeal. Ofcourse he was absent even though he had been notifiedof the date of reading the decision. I agree with himwhen he argues that his earlier application filed “inthe Court of Appeal of Uganda at Kampala” was filedwithin the stipulated period of 14 days, but he withdrewit and instead of amending it, brought a freshapplication which was filed late.

Learned State Attorney may be right when, basing onthe wording of Rule 3 of Order 48 of the CivilProcedure Rules, he argues that his application “in theCourt of Appeal of Uganda at Kampala” was properwithout a supporting affidavit. I agree with him onthat argument in view of the wording of the rule whichimplies that a notice of motion not grounded onevidence by affidavit may be proper. However, hisargument seems to shoot him in the arm when he arguesthat the present application is the same as the one filed“in the Court of Appeal of Uganda..” since the presentone has a supporting affidavit. I should, in fact, mentionthat he had no authority to amend his applicationwithout the leave of the Court in view of the provisionof Order VI (as amended by Statutory Instrument No.26 of 1998) which in Rule 19 provides that:

“A plaintiff may, without leave, amend hisplaint once at anytime within 21 days from

THE ENVIRONMENTAL ACTION NETWORK LTD

VERSUS

ATTORNEY GENERAL AND NATIONAL ENVIRONMENT MANAGEMENTAUTHORITY (3)

HC.Misc, Applic. No. 39 of 2001

High Court, Kampala (The Principal Judge , Mr. Justice J.H. Ntabgoba): November 6th 2001

26

the date of issue of summons to the defendantor, where a Written Statement of Defence isfiled, then within 14 days from the filing ofthe Written Statement of Defence or the lastof such written statements.”

In this case, even assuming that the application filed“in the Court of Appeal of Uganda…” was properlyfiled and therefore amended by the one filed on 15thOctober 2001, there is no sign that it was served onthe respondent, although to be fair to the applicants,the respondent must have received the notice of motion.The point I am making, however, is that it did neithercomply with the 21 days or the 14 days provided inOrder 6 Rule 19 (as amended by S.I. No. 26/98). Andno leave is shown to have been sought to amend.

The learned State Attorney then makes a mistake whenhe argues that his application was on a point of law.His application was to enable him to challenge thiscourt that it failed to refer to an authority of the decisionin the Rwanyarare petition and that the Court shouldhave held that Misc. Application No. 39/2001 was a

nullity in so far as the applications therein should havesought the permission of the Court to represent thepublic.

A part from my decision that in public interest litigationthere was no need to follow order 1 rule 8 of the CivilProcedure Rules, as also there was no requirement tosue under Act 20 of 1969, I see nothing being a pointof law being sought to be appealed against. I think theappeal sought was on a point of fact, namely, thealleged failure of the Court to follow the Rules ofProcedure. But this is a by the way. The fact is thatneither did the applicants file the amendment withinthe stipulated period nor did they seek leave of thecourt to amend outside that period.

It is in light of the above that I struck out the application(amendment) and promised to give these reasons insupport of my decision.

H. NTABGOBA.PRINCIPAL JUDGE6/11/01

27

The Government of Uganda entered into an agreementor a series of agreements, the main being theimplementation agreement, with AES Nile Power Ltd.covering the building, operation and transfer of a HydroElectric Power complex at Dumbell Islands on the riverNile, near Jinja Uganda. In consequence of theimplementation agreement, a power purchaseagreement (PPA) was executed by AES Nile PowerLtd. and Uganda Electricity Board, a StatutoryCorporation at the time established and wholly ownedby the Government of Uganda.

The applicant is an NGO and a company limited byguarantee incorporated in the Republic of Uganda. Themain mission of the Company is environmentalprotection through advocacy and education. It soughtto obtain a copy of the Power Purchase Agreementfrom the government of Uganda in vain. Thegovernment stated that the Power Purchase Agreement(PPA) is a comprehensive document with a lot ofinformation including the sponsor’s technical andcommercial secrets. It therefore contains clauses onconfidentiality and protection of intellectual property,which do not permit them to make it available to theentire public. Following this, the applicant commencedthe action against the Attorney General and UETCL.

HELD

The state does not have to be party to the agreement inorder for it to fall under Article 41 of the Constitution.

This was enough to trigger the application in Article41 of the Constitution as against the Government ofUganda. The mere fact that a company is a limitedliability company is not sufficient to disqualify thecompany from the possibility of being a governmentagency for purposes of Article 41 of the Constitution.A limited liability company with Ugandans as itsshareholders is a citizen for purposes of Article 41 ofthe constitution.

Since the Minister of Energy signed theImplementation Agreement on behalf of thegovernment of the Republic of Uganda, we being amember of the executive organ of the government ofUganda, and this Implementation Agreement is an Actin her official capacity. It is therefore a publicdocument. This application is allowed in part anddismissed in part with no orders as to costs.

RULING

1. The Government of Uganda entered into anagreement or a series of agreements, the mainagreement being the Implementation Agreement,with the AES Nile Power Limited covering thebuilding, operation and transfer of a hydro electricpower complex at Dumbell Island, on the RiverNile, near Jinja, Uganda. In addition, inconsequence of the Implementation Agreement, aPower Purchase Agreement(PPA) was executed byAES Nile Power Limited and Uganda Electricity

GREENWATCH (U) LTD

VERSUS

ATTORNEY GENERAL & UGANDA ELECTRICITY TRANSMISSIONCOMPANY LTD.

(H.C. Misc. Appl. No. 139 of 2001)

High Court Kampala ( Hon. Mr. Justice F.M.S. Egonda – Ntende) : November 12th 2002

Constitutional law: Whether access to the PPA came within the exception provided under Article 41 of theConstitution.

Constitutional law: whether the applicant was a citizen in the meaning of Article 41

Constitutional law: whether the PPA was a public document within the meaning of Article 41

Civil Procedure: whether the respondent No. 2 a limited liability company can be a government agency

Civil Procedure: whether government was party to this action.

28

Board, a statutory corporation at the time,established and wholly owned by the Governmentof Uganda, with the commercial monopoly togenerate, transmit and sell electric current inUganda.

2. Mr. Kabagambe Kaliisa in an affidavit filed in thiscase states that the Government in its sovereigncapacity made undertakings to the parties to thePower Purchase Agreement including AES NilePower Company and in all related agreements, notto divulge the said Agreements to the public. Doingotherwise would not only impair the economiccredibility and sovereignty of Uganda, but wouldalso amount to a breach by the state of its sovereigncommitments under the said agreements.

3. The Applicant is an NGO and a company limitedby guarantee incorporated in the Republic ofUganda. The main mission of the Company isenvironmental protection through advocacy andeducation. It sought to obtain a copy of the PowerPurchase Agreement from the Government ofUganda in vain. The Government responded to therequest, in a letter dated 23rd November, 2001, fromthe Permanent Secretary to the Applicant in thefollowing words, “I refer to your letter to theCommissioner, Energy Department, dated 1st

November 2001, on the above subject. The PowerPurchase Agreement (PPA) is a comprehensivedocument with a lot of information including thesponsor’s technical and commercial secrets. Ittherefore contains clauses on confidentiality andprotection of intellectual property, which do notpermit us to make it available to the entire public.”

4. Following this letter, the Applicant commencedthis action initially against the Attorney General.The Attorney General maintained the previousposition of Government as noted above and filedaffidavits opposing this action. The court askedthe Respondent for a copy of the agreement inquestion. Respondent’s counsel promised to availthe agreement to court in a couple of days.However, that was not to be. Court was notified ina letter from the Attorney General’s Chambers thatthe document did not exist. The applicants thenfiled a further affidavit with both theImplementation Agreement and Power PurchaseAgreement annexed thereto. Apparently, the copiescame from those copies of the agreement that hadbeen supplied to the Parliament. The documentpurporting to be a Power Purchase Agreement isin reality a copy of the Implementation Agreement,save for the first or cover page that shows it to be

a Power Purchase Agreement.

5. At this point, it became clear that a Power PurchaseAgreement did in fact exist, and the parties to itwere, Uganda Electricity Board and AES NilePower Limited. Subsequently Uganda ElectricityTransmission Company Ltd, the successor to theUganda Electricity Board, in respect of thisagreement was added as Respondent No.2.

6. Mr. Kenneth Kakuru, learned counsel for theApplicant, submitted that the Applicant wasentitled under Article 41 of the Constitution to haveaccess to information that is in the hands of thestate, its organs and agencies. He submitted thatRespondent No.2 being a wholly governmentowned company was a state agency which wasobliged to comply with the provisions of thisarticle. He submitted that the obligation was onthe respondents to show that access to the PowerPurchase Agreement came within the exceptionsprovided under the article, in terms of state sovereignty or state security or privacy.

7. Mr. James Matsiko, the learned Principal StateAttorney who appeared for the Attorney Generalsubmitted that this application was frivolous andvexatious as the applicant was seeking a document,that is the PPA, which was already in hispossession. Secondly, he submitted that theApplicant was not a citizen who under Article 41was the only authorized person to have access toinformation in state hands. The Applicant does notfall into the categories of citizenship that theConstitution created. Only natural persons wereenvisioned to be citizens.

8. Mr. Matsiko further submitted that the PPA wasnot a public document within the meaning of theEvidence Act, and the declaration sought in thatregard, that is to declare the same a publicdocument, are without basis in law. Mr. Matsikoalso submitted that Government was not a partyto the PPA, and therefore, was not a proper partyto this action. Lastly, he submitted that theRespondent No.2 is not a Government Agency ororgan, as it has a separate legal existence. Hereferred to the case of Mugenyi and Co. v. AttorneyGeneral, Supreme Court Civil Appeal No. 43 of1995(unreported). He prayed that this applicationbe dismissed with costs.

9. Mr. Dennis Wamala, learned counsel forRespondent No.2 opposed this application. Firstly,he submitted that the Power Purchase Agreement

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was not a public document within the meaning ofSection 72 of the Evidence Act, as none of theparties was a legislative, executive or judicialpublic official of the Government of Uganda.Neither was the Respondent No.2 an official bodyor tribunal within the meaning of Section 72 ofthe Evidence Act. The Respondent No. 2 being aprivate limited liability company made itsdocuments private documents in accordance withSection 73 of the Evidence Act. Secondly, hesubmitted that this application is brought underarticle 41 of the Constitution which providesaccess to information in state hands or in the handsof organs of state. The Respondent No.2 being alimited liability company was not an organ of thestate, and was therefore outside the ambit of theprovision. At the same time, Mr. Wamala submittedthat as the shares of the Respondent No.2 are freelytransferable, it cannot be said that the RespondentNo. 2 is an organ of state or an official body.

10. Thirdly, Mr. Wamala submitted that the applicantis not a citizen of Uganda for purposes of Article41 of the Constitution. This is because under article10 and 12 of the Constitution, citizenship refersto persons born in Uganda. In the alternative, Mr.Wamala submitted that in the event that the courtheld the Power Purchase Agreement to be a publicdocument, this action was premature as no demandhas been made to the Respondent No. 2 seekingaccess to this agreement. He prayed that thisapplication be dismissed with costs.

11. Section 72 of the Evidence Act defines documentsthat are public documents. It states, “Thefollowing documents are public documents -documents forming the acts or records of the actsof the sovereign authority; of official bodies andtribunals; and of public officers, legislative,judicial and executive, whether of Uganda, or anyother part of the Commonwealth, or of theRepublic of Ireland, or of a foreign country; publicrecords kept in Uganda of private documents.”

12. I agree that the Respondent No. 2 or its officialsare not part of the legislative or judicial orexecutive organs of the Government of Uganda.And quite probably it is not an official body ortribunal within the meaning ascribed to those twocategories in terms of Section 72 of theEvidence Act. But perhaps that is not sufficient toanswer whether the Power Purchase Agreementis not a public document, in light of the peculiarcircumstances surrounding the Power PurchaseAgreement.

13. The Honorable Syda Bbumba, Minister of Energyand Mineral Development signed theImplementation Agreement on behalf ofGovernment of the Republic of Uganda. TheMinister is without doubt a member of theexecutive organ of the Government of Uganda, andthis Implementation Agreement is an act in herofficial capacity. It is therefore a public document.

14. In the interpretation section of Implementationagreement, ‘basic agreements’ are stated to be,“This agreement, the Power Purchase Agreement,and the agreements, other than the FinancingAgreements, that are required to be executed onor before the Financial Closing in Connection withthe Project, as the same may be amended fromtime to time.”

15. Section 2.2 of the Implementation Agreementprovides, “The Company shall design, finance,insure, construct, own, operate, and maintain theComplex and design, finance and insure (duringconstruction) and construct the UEB Line inaccordance with the applicable laws of Uganda,all applicable Consents, the Basic Agreements andthe Financing Agreements.” In effect the companyundertakes as part of the ImplementationAgreement to comply with the Basic Agreementswhich includes the Power Purchase Agreement.

16. Under Section 3.4 of the ImplementationAgreement, the Government undertakes to executea Guarantee to the AES Nile Power Limited in theform of Annex C to the agreement. It shall set outbelow section 2.1 of the Annex C, the Guarantee.

17. “In consideration of the Company entering intothe Implementation Agreement and the PowerPurchase Agreement, Government of Ugandahereby irrevocably and unconditionally (a)guarantees to the company for the term hereof asprovided in section 2.1 the full and promptpayment of any amounts payable by UEB underthe Power Purchase Agreement and that have notbeen paid by UEB as provided in the PowerPurchase Agreement, provided that amounts indispute under the Power Purchase Agreement,shall not be due and owing for purposes of thisGuarantee until after the expiration of the disputeresolution procedures provided for in the PowerPurchase Agreement, including the 30- day periodfor payment after resolution of a dispute providedfor in section 8.4 (c) thereof (collectively, the“Guaranteed Obligations”); and (b)agrees as a

30

primary obligation to indemnify the Company ondemand by the Company from and against any lossincurred by the Company as a result of any of theobligations of UEB under or pursuant to the PowerPurchase Agreement being or becoming void,voidable, unenforceable or ineffective as againstUEB or any reason whatsoever, whether or notknown to the Company or any other person, theamount of such loss being the amount which theCompany would otherwise have been entitled torecover from UEB.”

18. It is clear to me from the foregoing that the BasicAgreements, or at least the ImplementationAgreement and the Power Purchase Agreement areso intertwined that one can not fully comprehendthe full import of the Implementation Agreementwithout reading and digesting the Power PurchaseAgreement. Neither of these two agreements iscomplete without the other. I find that the PowerPurchase Agreement is in effect incorporated intothe Implementation Agreement by reference. Asthe Implementation Agreement is a publicdocument, and the Power Purchase Agreement isincorporated by reference into the ImplementationAgreement, I find therefore that the PowerPurchase Agreement is a public document too.

19. The third declaration sought by the applicant isthat refusal to avail the Power Purchase Agreementand other related agreements to the Applicant isin violation of the Applicant’s constitutional rightsto access to information guaranteed under article41(1) of the Constitution. Under this head, theRespondent No.1 contends that as it is not a partyto the Power Purchase Agreement, it was not theright party to be asked to avail this agreement. Theaction against it in this regard, it further contended,was misconceived.

20. I reject this argument. I accept that Government isnot one of the signatories to the Power PurchaseAgreement. Nevertheless, I have already found thatthe Power Purchase Agreement was incorporatedby reference into the Implementation Agreementto which the Respondent No.1 is a party. TheRespondent No. 1 was rightfully in possession ofthe Power Purchase Agreement. Initially, theRespondent No. 1 admitted the existence of thePower Purchase Agreement in the affidavit of Mr.Kabagambe Kaliisa, Permanent Secretary of theMinistry of Energy and Mineral Development,dated 11th July, 2002.

21. In a subsequent affidavit of 18th October, 2002,

Mr. Kabagambe Kaliisa states that the PowerPurchase Agreement was executed between UEBand AES Nile Power Limited. It is clear that theMinistry of Energy and Mineral Development hadall the information pertaining to the agreementsought by the applicant, and for reasons it gave, itrefused to avail this agreement to the applicants.The action against it cannot therefore bemisconceived on account of the Government notbeing a party to the Power Purchase Agreement.Article 41(1) of the Constitution refers to i"nformation in possession of the state." What isimportant is possession of the information by thestate.

22. The Respondent No.2 contends that no demandhas ever been made for the Power PurchaseAgreement by the Applicant. And as such thisaction is premature and misconceived as againstit. I agree that no demand has ever been made.This was probably inevitable in light of the veil ofsecrecy that Government attached to the basicagreements to the extent that details related to theseagreements only arose during these proceedings.By the time it was evident that the RespondentNo. 2 was a successor to UEB for purposes of thisagreement, these proceedings had commenced.The response of the Respondent No. 2 to this claim,as we shall see when we consider the otherarguments of the Respondent No.2, is that theApplicant is not entitled to have access to thisagreement. Even if a formal demand is made theresponse of the Respondent No. 2 is known. I donot therefore accept the argument that this actionis premature against the Respondent No. 2.

23. Both learned counsel for the respondents join inthe argument that the applicant is not entitled toaccess to information for two reasons. Firstly, thatthe Power Purchase Agreement is in the hands ofthe Respondent No. 2 which is not an organ oragency of the state. Secondly, that the applicant isnot a citizen of Uganda within the meaning ofarticle 41 as the Constitution only contemplatesnatural persons to be citizens of Uganda. I willdeal with both arguments in that order. I shall beginby setting out article 41(1) of the Constitution.

24.“(1) Every citizen has a right of access toinformation in the possession of the state or anyother organ or agency of the state except wherethe release of the information is likely to prejudicethe security or sovereignty of the state or interferewith the right to privacy of any other person.”

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25. In the first place, I have found that the PowerPurchase Agreement was incorporated byreference into the Implementation Agreement andwas in possession of Government. On that account,it was information in possession of the state.Article 41 refers to information in possession ofthe state. The state does not have to be a party tothe agreement in question, for the agreement to bein possession of the state. What is important hereis the possession in whatever capacity occurring.It has been shown by the affidavit of Mr.Kabagambe Kaliisa that Government was inpossession of the Power Purchase Agreement. Thiswas enough to trigger the application of Article 41 of the Constitution as against the Governmentof Uganda.

26. Secondly, I reject the argument that the mere factthat a company is a limited liability company that is sufficient to disqualify the company from thepossibility of being a government agency forpurposes of article 41 of the Constitution. It is thetotality of circumstances surrounding the companythat must be taken into account before determiningwhether it is a government agency or not.

27. In the instant case UEB, or Uganda ElectricityBoard in full, was a governmental parastatalorganization set up by statute with Governmentas its full and sole owner for the purpose ofdeveloping and supplying power to the people ofUganda. In pursuance of its main objectives, itsigned the Power Purchase Agreement with AESNile Power Limited as part of a series ofagreements negotiated by Government and AESNile Power Limited. I have no doubt in my mindthat the UEB qualified to be a government agencyfor purposes of Article 41 of the Constitution andwith regard to the undertaking under the PowerPurchase Agreement. This is so especially in lightof the incorporation of the Power PurchaseAgreement into the Implementation Agreement.

28. Uganda Electricity Transmission CompanyLimited, a limited liability company, wholly ownedfor the time being by Government has nowsucceeded Uganda Electricity Board. For purposesof this power project, I think it matters little thatthe successor Company is a limited liabilitycompany. The company is an agent of Governmentin ensuring that the power is available to the peopleof Uganda. The company’s obligations assuccessor to UEB, clothe it with agency of the statefor purposes of this project. The Respondent isthe sole purchaser of the power from the project

being executed between AES Nile Power Limitedand Government. Government guarantees thecontinued existence of UEB and its successors intitle, and ability to purchase the power produced.Information in the company’s possession onaccount of this project is information, in my view,in the hands of a state agency.

29. Mr. Matsiko did not address me at all on theexceptions provided under article 41 of theConstitution, that is, State security and statesovereignty that were raised in Mr. KabagambeKaliisa’s affidavit. I take that those grounds ofdefense were abandoned. The affidavit does notdisclose how disclosure to the public of theagreements in question would affect the securityof the state or its sovereignty. It just lays a claimwithout providing the grounds to reach such aconclusion. I accordingly reject the claim thatdisclosure would affect the security or sovereigntyof the state.

30. Turning to the question of whether the Applicantis a citizen within the terms of article 41 of theConstitution, the question may best be consideredby analogy with another provision that assurescertain rights to be available to citizens. This isarticle 237 of the Constitution which provides thatland in Uganda belongs to the citizens of Ugandaand shall vest in them in accordance with the landtenure systems provided in the Constitution. Thata limited liability company incorporated in Ugandawith all its members being citizens of Ugandaqualifies to own land in Uganda is not a questionat all. That a company is accepted as a citizen ofUganda albeit a corporate citizenship, if I can callit thus.

31. I take it that this ought to be the same positionwith regard to article 41 of the Constitution forconsistency of the law. Indeed corporate bodiescan enforce rights under the bill of rights for theyare taken as persons in law, though not naturalpersons. Similarly for citizenship, it is possible fora corporate body to be a citizen unless I supposethe provision in question is very clear in statingthat it is restricted to natural persons as citizens.This is not the case with article 41. I therefore findthat a corporate body could qualify as a citizenunder article 41 of the Constitution to have accessto information in the possession of state or itsorgans and agencies.

32. On the evidence before me it has not been shownthat the Applicant qualifies as a corporate citizen.

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No evidence has been adduced as to itsmembership, mush as it has been established thatit is a limited liability company incorporated inUganda and limited by guarantee. On that accountalone, I decline to grant the declaration that it isentitled to access the information sought in thepossession of both Respondent under article 41 ofthe Constitution.

33. In the result I declare that the ImplementationAgreement and the Power Purchase Agreement are

public documents. This application is allowed inpart and dismissed in part with no order as to costs.

Dated, signed and delivered this 12th day of November,2002.

F. M.S EGONDA – NTENDE.JUDGE.

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This is an application by chamber summons under CivilProcedure Rules for a temporary injunction for orders:

a) Restraining the respondent/defendant fromacquiring Butamira reserve and uprooting the forestto establish a sugar cane plantation.

b) Restraining the respondent/defendant servants oragents from evicting, intimidating, threatening orin anyway interrupting or destroying the plaintiffs/applicants and other residents use and occupationof Butamira forest reserve until the disposal of themain suit or until further orders of this court.

c) Costs of the suit be provided for.

The grounds of the application appear in the affidavitof Siraji Waiswa, the applicant and they are brieflythat:

The purpose of a temporary injunction is to preservematters in status quo until the matter to be investigatedin the main suit is finally resolved. The conditions mustgenerally be satisfied before an injunction of this natureis granted.

HELD

1. The facts as gathered from the application and thepleadings in the main suit show that there are somequestions of environmental concerns andindividual interest. When the stage is reached,court will make an appropriate decision on the

matter. As for now there are equal chances ofsuccess or failure by either party.

2. The damages complained of is of a material naturewhich would not adequately be compensated byan award of damages done.

3. Since the defendant is ready to respect the statusquo, there is nothing they validly stand to lose inthe event that the status quo is enforced by courtorder. The balance of convenience is therefore infavour of the temporary injunction being granted.Application granted to last six months.

RULING

This is an application by Chamber Summons under0.37 rr.2, 3 and 9 of the Civil Procedure Rules for atemporary injunction for orders:

(a) Restraining the respondents/defendant fromacquiring Butamira reserve and uprooting theforest to establish a sugarcane plantation.

(b) Restraining the respondent/defendant servants oragents from evicting, intimidating threatening orin anyway interrupting or destroying the applicant/plaintiff’s and other residents use and occupationof Butamira Forest reserve until the disposal ofthe main suit or until further orders of this court.

(c) Costs of the suit are provided for.

SIRAJI WAISWA

VERSUS

KAKIRA SUGAR WORKS LTD

(H. C. Misc. Applic. No. 230 of 2001)

High Court at Jinja (Hon. Mr. Justice. Yorokamu Bamwine) : November 29th 2001

Civil Procedure: Order 37 Rule 2,3 and 9 temporary injunction

Civil Procedure: whether the applicant is probably to succeed in the main suit

Civil Procedure: whether the applicant will suffer irreparable damage/injury which would not adequatelybe atoned for by an award of damages

Civil Procedure: whether the application will be decided on a balance of convenience

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The grounds of the application appear in the affidavitof Siraji Waiswa, the applicant, and are briefly that:

• The applicant has on his own behalf and on behalfof other peasant farmers of Butamira Forest Reservefiled a suit against the respondent/defendant;

• The suit is as yet unheard but the respondent/defendant has diverse dates entered the disputedforest reserve and uprooted trees therein androutinely destroyed seed nurseries;

• The destruction of the suit property would renderthe suit nugatory and result in irreparable damageto the environment;

• The applicant has a strong case with great likelihoodof success.

At the hearing of the application, Mr. Kenneth Kakurufor the applicant brought to the attention of this courta letter dated 19th July 1998.It is from theCommissioner of Forestry to the Managing DirectorMadhvani Group of Companies. In the letter, theCommissioner was informing the addressee that adegazetting schedule had been submitted to SolicitorGeneral’s office. In the same letter, the ManagingDirector was being authorized to use the entireButamira Forest Reserve within the Group ofCompanies estate for any activities as the companydeems fit. In another letter dated 3rd August 2000 fromAg. Commissioner for Forestry, Mr. Deo Byarugaba,the General Manager of the respondents/defendantcompany was being informed that he author’s recentvisit to the reserve had revealed that the company wasuprooting the planted trees in preparation for growingsugarcane.

This, said the Commissioner, was a gross violation ofthe law governing Forests in Uganda. A permit(No.3264) dated 28/7/1998 was accordingly cancelled.The manager was directed to remove all companyproperty not later than 30/4/2000.

In an appropriate response to the above measures, thecompany’s Senior Manager Corporate Affairs K.P.Eswar wrote to the Ag. Commissioner for Forestryproposing to make available to the Forest Departmenta total of 1247Ha of land in Uganda within a period of6-12 months which piece of land would then begazetted as a Forest reserve in exchange for Butamiraforest, which could be degazetted and leased to KakiraSugar Works for general purpose use. The last letter isalso dated 9th May 2000 from the District ForestryOfficer Jinja addressed to the Executive Director

NEMA. The gist of the letter is that Butamira ForestReserve (1257Ha) had been extensively uprooted bythe Respondent/defendant Company in preparation forsugarcane growing. The Officer was calling forintervention of NEMA. In his address to court, Mr.Kakuru noted that the threat to destroy the environmentwas real and it requires urgent attention. He downplayed Mr. K.P. Eswar’s averments in his affidavit of21/11/2001 in which the deponent States that therespondent ceased all its activities in June 2000,waybefore the institution of the main suit in July 2001 morethan a year later. This was re-echoed by Mr. Taremwa,counsel for the respondent. Mr. Taremwa’s point isthat since the respondent ceased operations in the areain June 2000, it was not necessary to bring up theapplication and impliedly the main suit. In his opinion,the application was being brought in bad faith and isfrivolous. In reply to this, Mr. Kakuru said that theapplicant does not have to wait until the environmentis destroyed and he starts complaining .Any court canseek court redress to prevent likely harm to theenvironment.

I listened very carefully to the addresses of bothcounsels for the parties also had a careful perusal ofthe documentary evidence especially the affidavit ofEswar. The conditions for grant of the temporaryinjunction have been re-echoed in a number of cases.They include:

1. Geilla Vs.Gasman Brown & Co.Ltd (1973)E.A.3582. Noormohamed Jan Mohamed Vs.Kassamali Virji Madhvani (1953) 20 EACA 8

The purpose of a temporary injunction is to preservematters in status quo until the matter to be investigatedin the main suit is finally resolved. Three conditionsmust generally be satisfied before an injunction of thisnature is granted.

1. The applicant must show a prima facie case witha probability of success in the main suit. The factsas I gather them from the application and thepleadings in the main suit show that there are somequestions of environmental concerns andindividual interests to be investigated in the mainsuit. To declare that the applicant has not shown aprima facie case with a probability of success inthe main suit before the parties are heard wouldbe to pre-judge issues. For now, I would hesitateto state that before the hearing of the main suitcommences, the defendant is set to raise apreliminary point of law that the suit is prolix,

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frivolous and vexatious, pre-mature, bad in lawand an abuse of court process. When that stage isreached, court will make an appropriate decisionon the matter. As of now, there are equal chancesof success or failure by either party.

2. A temporary injunction will not normally begranted unless the applicant might otherwise sufferirreparable injury, which would not adequately beatoned for by an award of damages.

This is a matter to do with the alleged destructionof the environments far as the individual interestis concerned, the damages would be appropriate.However, a matter to do with destruction of theenvironment would affect not only parties to thissuit but also current generations to generations tocome.

Damages to the applicant alone would not remedythe injury to mankind as a whole. I would thereforefind that the damage complained of is of a materialnature, which would not adequately becompensated by an award of damages alone.

3. Where there is doubt, the court will decide anapplication on a balance of convenience. Therespondent’s case is that since June 2000 the threatto the environment has ceased. My reading of theletter dated 19/4/2001 addressed to PrincipalPrivate Secretary to His Excellency the Presidentby the Permanent Secretary, Ministry of Water,Lands and Environment shows that the debate on

the matter still continues. The impression that sinceJune 2000 the threat is no more is thereforemisleading. To depend on the good will of oneparty to the conflict would, in my view, bedeceptive. And since the respondent is ready torespect the status quo, I do not see what theyvalidly stand to lose in the event that the statusquo is enforced by court order. The applicant doesnot have to wait until his presumed rights areviolated before he lodges an application for atemporary injunction. The balance of convenienceis therefore in favor of the temporary injunctionbeing granted.

For the reasons stated above, I would grant the remedysought herein and order restraint on the part of thedefendant from uprooting the forest to establish asugarcane plantation during the pendency of the mainsuit. The defendant would be restrained from evicting,intimidating, threatening or in any way interruptingthe status quo during the pendency of the main suit oruntil a lasting solution shall be provided byGovernment, whichever comes first. To avoid abuseof court process, the life span of this injunction shallbe six months from date of this ruling, subject torenewal for a just cause.

Costs of this application shall be in the cause.

YOROKAMU BAMWINEJUDGE.29/11/2001.

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This is an application seeking for a temporaryinjunction. The main prayer of the applicants is thatan injunction is issued against the respondents,restraining them from developing plots 64 – 86, YusufLule (Kitante Road) Kampala until the main suit hereinis heard and determined.

HELD

a) The first requirement is complied with thisapplication is inter parties and each party has filedtheir pleadings.

b) The suit property being property of the respondentand KCC and NEMA having given a great light onthe project and them being the controlling andregulatory authorities respectively, this weighsleaving against the applicants success in the legalsuit.

c) There is no irreparable damage to be suffered bythe applicants or the public whose interest theyclaim to represent. This application must fail therespondents will have their taxed costs.

RULING

This is an application seeking for temporary injunction.It is taken out under the provisions of 0.37 p.1,7 and 9of the civil Procedure Rules, and is supported byKenneth Kakuru’s affidavit.

The main prayer of the applicants are that an injunctionis issued against the respondents, restraining them fromdeveloping plots 64-86,Yusuf Lule (Kitante Road)-

Kampala until the main suit herein is heard anddetermined.

The grounds of the application as set out in the chambersummons are:

• That the applicants have filed a suit against therespondents/defendants and the same is pendinghearing in this court.

• That the respondent/defendant is putting the suitproperty are destroying the environment and if thisapplication is not granted, the environment shallsuffer irreparable damage.

• That the respondent/defendant is putting the suitproperty are destroying the environment and if thisapplication is not granted, the environment shallsuffer irreparable damage.

• That the applicants have a strong case with greatlikelihood of success.

Further it is contented in the supporting affidavit thatfailure to grant the injunction would render the outcome of the head suit nugatory.

The brief facts of the head suit are as follows. Thedefendants are owners of the suit piece of land onwhich they are constructing a Hotel. The plaintiffs aredescribed as Non-Governmental organizations, whosemain objectives are policy research and advocacy forprotection of the environment and environmental rightsin Uganda.

GREENWATCH AND ADVOCATES COALITION FOR DEVELOPMENT &ENVIRONMENT

VERSUS

GOLF COURSE HOLDINGS LTD.

(H.C. Misc. Applic. No. 390 of 2001)

High court at Nakawa (Hon. Mr. Justice Akiiki – Kiiza) : October 20th 2001

Civil Procedure: O.37 P.1;7 and 9 of the Civil Procedure RulesCivil Procedure: whether the application is inter partiesCivil Procedure: whether there is a serious question to be tried in the head suitCivil Procedure: whether the applicant might suffer irreparable damages

37

The plaintiffs are claiming that the construction of theHotel on the suit land is threatening the environmentand that it contravenes the law, as it is on the wetlandand green areas. The defendants are therefore seekingto stop construction and protect, conserve theenvironment and uphold the environmental law.

Both learned counsel made lengthy submissions forand against the grant of the temporary injunction.Before I tackle the main issue in this application, somereference was made about the number of plaintiffs inthis case. The plaint talks of 1st and 2nd plaintiffs, asboth are Non-Governmental Organizations. They saythey are bringing the action under S. 72 of NEMAstatute. Under the interpretation decree, a personincludes inter-alia, an association or body of personscorporate or incorporate. Hence in my view, they havethe necessary locus standi in bringing this suit.

However, the plaint is clearly signed by the 1st plaintiff,Greenwatch, only! The second plaintiff never signedthe plaint at all. My learned predecessor in this case,Lady Justice Anne Magezi, considered this matter. Iwill only refer to those sections of her ruling (H.C.C.MIS. Application No. 1004/2000) which concerned theapplication for a temporary injunction.

It is my view that in order for the application beforeLady Justice Magezi, to have succeeded, the party whosigned the pleadings must have confirmed with eitherO. Ir. 8 (1) or O. 1r 12(2) of the CPR.

In the application before Justice Magezi, the secondplaintiff or his representative swore the affidavit insupport of the application for a temporary injunction.The learned judge, rightly in my view, threw out theapplication, as the person who had purported to swearthe application was a stranger to the head suit, as henever signed the plaint, despite the fact that hepurported to be or purported to represent the secondplaintiff.

The plaint in its present form has only one plaintiff,i.e., Greenwatch is not suing in representative capacity,and hence it is the only party suing the defendant.

(See the case of Sonko and Oros.Versus Haruna andAnor [1971]. EA 443 and Johnson Versus Moss[1969] EA. 654, and a recent case of this Court ofZabuloni Munoka and Oros. Versus Bukemba EstatesLtd. H.C.C.S. 432/87, unreported.)

This is in accordance with O.1 r. 8 (1) of the civilprocedure rules. On the other hand, if Greenwatch was

representing both plaintiffs, then Advocates Coalitionfor Development and Environment, (ACODE) mustgive a written authority to that effect. This is inconformity with 0.1-r.12 (2) of the Civil ProcedureRules.

(See the case of S.K Mubiru & Anor.Versus G.W.Byensiba [1985] HCB 106, and Zabuloni Munoka &Oros Versus Bekemba Estates Ltd. H.C.C.S. NO. 432/87 unreported).

It appears Greenwatch has no such written authorityfrom ACODE, and as this is neither a representativeaction, a representative of ACODE could not havedeponed an affidavit in support of the application filedby Greenwatch.

However the position in the instant case is differentfrom that before Lady Justice Magezi in H.C.C. Misc.Application No. 1004/2000. This application is filledby Greenwatch. The affidavit in support of theapplication is deponed by a representative ofGreenwatch. Therefore in my opinion, Greenwatch hasa right to be heard and is not affected by the non-existing of the second applicant.

I will now turn to the merits or otherwise of the instantapplication. Circumstances in matters like that beforeme differ from case to case. Each case therefore is tobe decided upon its own facts given the prevailingcircumstances at the time of lodging/hearing theapplication.

It is however now settled that while granting or refusingto grant a temporary injunction, court has to considerthe following:

a) There must be a pending head suit. The applicationof this nature must be inter-parties.

b) That there is a serious question to be tried in thehead suit and that the applicant has a prima faciecase where by there is a probability of being entitledto the relief sought in that suit.

c) The applicant might otherwise suffer irreparabledamage, which would not be adequatelycompensated by way of damage.

d) If the court is on doubt on the above, court willdecide the application on the balance of convenience

(See the following cases: Robert Kavuma Versus HotelInternational, Supreme Court, Civil Appeal No. 8/

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90, unreported, and L.D. Cotton International VersusAfrican Farmers Associates B. V. and Anor. [1996]HCB. 57.

The first requirement is compiled with. There isH.C.C.S. NO.834/2000. This application is inter-parties and each party has filed their pleadings. Thenext question is whether there is a serious question tobe tried in the head suit and the likelihood of success.There is need for the applicants in their affidavit insupport of the application to specifically state that thequestion to be tried during the trial is serious and thatprima facie they are likely to succeed. (See the case ofNitco Ltd, Versus Hope Nyakairu [1992-93] HCB.135) Per Karokora J, as he then was. In the instantcase, the applicants’ affidavit is silent on the likelihoodof success of their claim at the trial, though the chambersummons allude to it.

Secondly the respondents through their affidavit inreply, state that they are the owners of the suit land,comprised in plots 6-86-Yusufu Lule Road this notchallenged by the applicants in their affidavit in supportof the application. It was held in the case of DavidBakirirahakye Vs. A.G. & 7 Oros. H.C.C.S. NO. MMB14/90 (MBARARA REGISTRY) per Karokora J, ashe then was, that granting an interim (temporaryinjunction) to restrain a respondent from using the landto which he has a certificate of title, which in law isconclusive evidence of ownership, when no fraud hasbeen proved, would be tantamount to contravening theprovisions of S. 184 of R.T.A. I entirely agree with thelearned judge. This is more so in this case, where theapplicants/plaintiffs are not claiming any proprietaryinterest at all, in the plot on which the construction istaking place.

Their interest is stated to be in public of nature. I amaware that the NEMA statute gives them the right tosue but in my view this does not diminish the fact thatthe suit property belongs to the respondents and inabsence of proved fraud their title is impeachable! Therespondents in the affidavit in reply contented thatcontrolling Authority of Kampala City Council andthe National Environment Management Authoritywhich is the Regulatory Authority on mattersconcerning the environmental matters, have given agreen light to the construction of the Hotel on thepresent site. In my view, both KCC & NEMA are publicbodies, which we put in place to ensure that privatedevelopers, like the respondents, conform to standardsas laid down by law. This would be done by carryingout some investigations.

It appears in this case this was done and they gave agreen light to the respondent to go ahead with theproject. This in my view weighs heavily against theapplicant’s success in the head suit.

As to whether the applicants will suffer irreparabledamage, which would not be adequately compensatedby way of damages, I do not see how the applicantsare likely to suffer any irreparable damage. As I havealready said, they don’t have any proprietary interestin the suit property. What they appear to be claimingis that, the respondents are using their propertywrongly. That they should not use it for somethingelse. They claim further that the construction of thehotel now going on is contrary to public interest, asthe area is a wetland and a green area.

On the other hand, the respondents are maintainingthat both the controlling authority (KCC) and theregulatory authority (NEMA) gave a go ahead aftercarrying out impact assessment. In my view, thesepublic bodies are in place to ensure that the provisionsof the NEMA statute are complied with and hence theytake care of the public interest the applicants areclaiming to protect.

It is in my view that there is no irreparable damage tobe suffered by the applicants or for that matter thepublic whose interest they claim to represent. Even ifthe damage is caused, this could be put right under theprovisions of the provisions of s. 68 of the NEMAstatute.

This section provides for restoration. This restorationwould be definitely at the respondents expense. All inall I find that the applicants have failed to proveirreparable damage which can not be adequatelycompensated in damages.

After a careful considering of all the submissions ofboth learned counsel and perusal of the affidavits andafter considering the law applicable, both statutory andcase law, I am of a considered view the this applicationmust fail. The respondents will have their taxed costs.

AKIIKI-KIIZAJUDGE20.10.01

Order:The Register to read the ruling to the parties. The rightof appeal should be explained. It is as of right no leaveis required.

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The applicant filed the chamber summons applicationunder Order 7, Rule 11 and 19 of the Civil ProcedureRules seeking order that:

a) the plaint in High Court Civil suit No.486 of 2000be rejected.

b) The plaintiff ordered to pay the defendant the costsof the suit and this application.

The main ground of this application was stated to bethat the plaintiff disclosed no cause of action.

The plaintiff was operating a factory located adjacentto residential homes including the plaintiffs rentedapartment at Kibuli mosque, zone 1. The plaintiffalleged that the smoke is obnoxious, poisonous,repelling and hazardous to the community around andto the plaintiff in particular who is already affected inhealth.

HELD

It is trite law that in deciding the issue of cause ofaction only the plaint has to be looked at:

• The plaintiff stated in parg.3 of his reply to thewritten statement of defence- “ 3. In reply to thedefendants pargs.8 and 9, the plaintiff avers thathis legal right to sue emanates from the right to ahealthy environment under the same NEMAStatute (Act) Section 4.”

• The plaintiff is bound by this pleading. It is in thisvein that I now hold that no right has been definedby NEMA under part VI of the statute.

• I hold that the plaint has failed to establish thefirst essential element for a cause of action, viz., adefined right (enjoyed by the plaintiff).

In view of the above holding, I find little difficulty inholding that the plaint fails on the second and thirdessential elements. The Auto Garage case is anauthority for the legal proposition that, “the provisionthat a plaint not disclosing a cause of action shall berejected is mandatory”

I shall follow this decision in the present case.

NEMA is the only person vested with the power andduty to sue for violations committed under the Statute;further that the only recourse available to every personwhose right under this statute is violated is to informNEMA or the local Environment committee of suchviolation.

The plaintiff has no locus standi to sue for any violationunder this statute.

RULING

The Defendant/Applicant filed this Chamber Summonsapplication under Order 7, Rule 11 and 19 of the CivilProcedure Rules seeking the following orders: -

“ (a) That the plaint in High Court Civil SuitNo. 466 of 2000 be rejected; (b) That the Plaintiff be ordered to pay to theDefendant the costs of the suit and thisapplication.”

The main ground of the application was stated to bethat the plaint disclosed no cause of action.

BYABAZAIRE GRACE THADDEUS

VERSUS

MUKWANO INDUSTRIES

(H.C. Misc. Appl. No. 909 of 2000)

High Court (Hon. Mr. Justice G. Tinyinondi) January 24th 2001

Civil procedure: cause of action-whether plaintiff had to comply with standards under S.25 NEMA Statute

Civil procedure: locus standi-whether plaintiff could receive remedies under S.4 of the NationalEnvironment Statute of 1995

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An affidavit in support was also filed. It was sworn byAlykhan Kamali who deponed, inter alia:

1. That I am Executive Director of the Defendantapplicant company and make this deposition in thatcapacity.

2. That I have read the plaint and reply to our WrittenStatement of Defence filed by the Applicant andunderstood them. Copies of the said pleadings areattached hereto as annextures A1 and A2 to thisaffidavit. A copy of our defence is attached andmarked annexture B.

3. That it is clear that from the statements in the plaintthat the Plaintiff brings a suit based on the allegedemissions of noxious gases into the air by theDefendant.

4. That it is clear from the statement in paragraph 3of the reply filed by the Plaintiff in response toour written statement of defence that the Plaintiffpurports to bring this action under the provisionsof Section 4 of the National Environment Statuteof 1995.

5. That I am informed by my Advocates whom Iverily believe, that the aforesaid provision doesnot create a right to bring legal action on anyindividual but vests it instead in the NationalEnvironment Management Authority or on localenvironment committees formed under the Act.

6. That I am further informed by my Advocates,whom I verily believe, that any actions arising fromthe alleged emission of gases into the atmospheremust be brought in conformity with the saidStatute, which is the overriding law inenvironmental matters.

7. That I am further informed that no actioncan lie against any person in respect of emissionsunless such emissions exceed standards andguidelines prescribed by the National EnvironmentManagement Authority under the NationalEnvironment Statute.

8. That I have read the plaint and reply carefully andit is clear that they do not allege that the aforesaidstandards have been established by the relevantauthorities, or that the alleged emissions from ourfactory exceed the said standards, or that anymeasurements have been made in accordance withthe provisions of the said Statute to determine the

quality of gas emissions from the factory, orindeed, that they exceed such prescribed standardsin any degree.

9. That I verily believe that in the absence of anystatement as to the aforesaid material facts theplaint does not disclose a cause of action againstour company.

10. That I have also noted that the plaint has indicatedthe subject matter of the suit as being valued atShs. 60,000,000/=.

The Plaintiff/Respondent did not file an affidavit inreply.

At the hearing of the application, Mr. Byenkya,Counsel for the Applicant, rehearsed the contents ofboth the Chamber Summons application and theaffidavit. He referred to paragraphs 4 and 6 of the Plaint– ( the Plaint was annexed to the Chamber Summonsapplication) which read –

“4. The cause of action is a continuing tortwhich persists as follows:The Defendant operates a factory located justadjacent to Kibuli Police Barracks which isadjacent to residential homes including thePlaintiff’s rented apartment at Kibuli, MosqueZone 1. The said smoke is obnoxious,poisonous, repelling and a health hazard tothe community around and to the Plaintiff inparticular who is already affected in health.

The said escape of this smoke from the Defendant’spremises are occasioned further by the Defendant’snegligence in the following particulars:

Particulars of enhancing negligence:

• Failing to control obnoxious, poisonous and healthhazard smoke from emission from the factory.

• Failing to purify the smoke to a safe level beforeemission.

• Failing to alert the residents in the neighborhoodabout the possible effects of the smoke emitted.

• Failing to notify the local authorities on the natureand health effect of the smoke being emitted.

• Failing to effect environmental levels establishednationally and internationally.

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• Failing to enforce smoke emission levelscommensurate to a living, working or residentialarea and neighborhood.

• Failure to submit the National EnvironmentalManagement Authority details pertaining to theemission of toxic levels.”

Learned Counsel also referred to paragraph 3 of thePlaintiff’s Reply to the Written Statement of Defence,which reads –

“3. In reply to the Defendant’s paragraphs 8and 9, the Plaintiff avers that this right to sueemanates from the right to a healthyenvironment under the same NEMA Statute,section 4.”

Learned Counsel for the Applicant argued that whereasthe said section creates a right to a healthy environment,it also specifically provides for who will bring courtaction. He referred to Section 4 (3). The sub-sectionreads:

“ (3). In furtherance of the right to a healthyenvironment and enforcement of the duty tomaintain and enhance the environment, theAuthority or the local environment committeesso informed under subsection (2) is entitled tobring an action against any other person whoseactivities or omissions have or are likely to havea significant impact on the environment to –• prevent, stop or discontinue any act or

omission deleterious to the environment;• compel any Public Officer to take measures

to prevent or to discontinue any act oromission deleterious to the environment;

• require that any on-going activity besubjected to an environmental audit inaccordance with section 23 of this Statute;

• require that any on-going activity besubjected to environmental monitoring inaccordance with section 24 of this Statute;

• request a court order for the taking of othermeasures that would ensure that theenvironment does not suffer any significantdamage.”

Learned Counsel submitted on the right to NEMA orthe local environmental committee. He referred tosections 4(2) and 17 of the Statute (ante). They read –

“4(2). Every person has a duty to maintain andenhance the environment, including the dutyto inform the Authority or the local

environment committees of all activities andphenomena that may affect the environmentsignificantly.”

17 (1) A Local Government System shall onthe advice of the District EnvironmentCommittee appoint Local EnvironmentCommittees. When appointed, the functionsof the Local Environment Committee shallinclude the following:• to prepare a Local Environment work plan

which shall be consistent with the NationalEnvironment Action Plan and the DistrictEnvironment Action Plan;

• to carry out public environmentaleducation campaigns;

• to mobilize the people within its localjurisdiction to conserve natural resourcesthrough self-help;

• to mobilize the people within its localjurisdiction to restore degradedenvironmental resources through self- help;

• to mobilize the people within its localjurisdiction to improve their naturalenvironment through voluntary self-help;

• to monitor all activities within its localjurisdiction to ensure that such activitiesdo not have any significant impact on theenvironment;

• to report any events or activities whichhave or are likely to have significantimpacts on the environment to the DistrictEnvironment Officer, or to the appropriateResistance Committee, Council or suchother person as the District ResistanceCouncil may direct;

• to carry out such other duties as may beprescribed by the District ResistanceCommittee or urban council in consultationwith the Authority.”

Counsel submitted that the Plaintiff does not claim tobe either of the two (the Authority or the LocalEnvironment Committee) and therefore cannotestablish a right under section 4 of the Statute andtherefore had no locus standi.

Learned Counsel further submitted that even if thePlaintiff had a locus under common, law nuisance hehad not pleaded the facts necessary to establish a causeof action. He submitted that Section 109 of Statuteprovides for what conforms to the Statute. Let me citethe section –

“109. Any law existing immediately before the

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coming into force of this Statute relating toenvironment shall have effect subject to suchmodifications as may be necessary to give effectof this Statute; and where any such law conflictswith this Statute, the provisions of this Statuteshall prevail.”

He noted that emission of gases into the air was coveredby Section 58 of the Statute.

“ 58 (1).No person shall pollute or lead anyother person to pollute the environmentcontrary to any of the standards or guidelinesprescribed or issued under part VI and VII ofthis Statute.(2). Notwithstanding sub-section (1), a personmay exceed the standards and guidelinesreferred to in sub-section (1) if authorized by apollution licence under Section 61 of thisStatute.”

That for the Defendant to be labeled a polluter he musthave acted under Parts VI and VVII of the Statute.Counsel referred to Sections 3 (2) and 58 of the Statute.He also argued that in relation to air, emission standardsare set out in Section 25 (1) (a) and (b) by NEMA.That in order for a cause of action to be establishedthe Plaint must allege that the standards have beenestablished and their particulars, and it must also allegethat the emissions from the factory are in excess ofthose standards. That the plaint must also allege thatthe polluter has no licence and is therefore in breach.Learned Counsel submitted that none of the above hadbeen pleaded. He cited C.A. No. 1/97: AG vs.TINYEFUZA (S.C) and AUTO GARAGE &OTHERS vs. MOTOKOV (No. 3: [1971] EA 514,regarding what constitutes a cause of action.

The next objection by Counsel for the Applicant wasthat no correct fee had been paid. That while thePlaintiff stated in paragraph 8 of the Plaint that thesubject matter was valued at Shs. 60,000,000/=(Shillings Sixty million only); the fees paid were onlyShs. 9,000/= (Shillings Nine thousand only) for twosuits, as per the annexed general receipt. That underOrder 7, Rule 11 of the Civil Procedure Rules the plaintwas liable to be rejected. He prayed accordingly.

Finally, Learned Counsel argued that the plaint soughtmonetary relief purely. That, Sections 3 and 4 of theStatute prescribed the remedies none of which wasmonetary. That therefore, the plaint could not claim tobe founded on section 4 of the Statute, and that,therefore, no plaint can legitimately claim general orspecial damages. I do not agree with Counsel that

section 3 covers his argument. I however agree withhim on the rest of the argument in this paragraph.

Mr. Olanya, Counsel for the Plaintiff/Respondent,replied as follows. The Chamber Summons applicationhad been rendered improper on account of Counselfor the Defendant/applicant introduction of insufficientfees which had not been included in the grounds. Courtfees should have been introduced under section 100of the Civil Procedure Act. Learned Counsel citedMARGARET KIWANA VS. CHIEF REGISTRAROF TITLES: MISC. APPL. 22/92 to say that Courtshould not entertain the issue of fees in this application.

In answer to the 1st submission by the Applicant’sCounsel, Counsel for the Respondent submitted that“this was clearly a common law action occasioned bythe Defendants’ negligence.” He referred court toparagraph 3 of the plaint.

With regard to the Plaintiff’s locus standi, Counselstated that it was derived from the common law ofnuisance and could not be negated by the Statute. Healso cited Section 109 of the Statute.

With respect to the cause of action, Learned Counselfor the Plaintiff/Respondent alleged that the plaint didnot have to comply with Section 58 of the Statute anddid not have to plead the standards that were violated.He submitted that paragraphs 3 and 6 of the plaintsufficiently laid out the particulars.

Counsel for the Respondent further contended that therequired court fees were in fact paid. That in the plaintthe Plaintiff sought four reliefs. That the court feesare paid on the reliefs claimed but not on the value ofthe subject matter. That Order 7, Rule 11 does not referto the valuation of the subject matter but to the reliefs.He further contended that the obligation to value andassess court fees was on court and not the plaintiffs.That if the court assessed the Plaintiff’s reliefs at Shs.4,500/= (Shillings Four thousand five hundred only),which the Plaintiff paid, the court could not, in theabsence of revaluation, condemn the Plaintiff to therejection of his plaint. That, that apart the Court hadnot ordered any revaluation and so the application waspremature. Counsel prayed for the rejection of theChamber Summons application with costs.

In reply, Counsel for the Applicant briefly stated thatthere was no need to order a revaluation of court feeswhere the plaintiff made the value clear.

I shall start with the question of the cause of action. Iwould settle for the statement of Spry, V.P in the AUTO

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GARAGE case (ante) at p. 519 D that –

“ …I would summarize the position as Isee it by saying if a plaint shows that theplaintiff enjoyed a right, that the right hasbeen violated and that the Defendant is liablethen, in my opinion, a cause of action has beendisclosed…”

Thus in summary, a cause of action is constituted bythe aforesaid three essential elements. Starting withthe element that the plaintiff enjoyed the right, I willstate this. An action founded on the provisions of aStatute must conform to those provisions and a Plaintiffcannot look beyond those provisions unless soprovided by clear provisions of the Statute in question.

Section 4 of the Statute expressly vests a right to ahealthy environment in every person, including thePlaintiff hereon. One needs to know what is meant bya “healthy environment.” It is my considered view, thatparts VI and VII of the Statute provide, in technicalterms, how a “healthy environment” can be described.Part VI describes standards in respect of “air quality,”“water quality,” “standards of discharge of effluentinto water,” “standards for the control of noxioussmells,” and many other standards. This part of theStatute goes a step further in stating that the Authority,i.e. NEMA, is the body entrusted with the duty ofestablishing these standards. In my considered view,it is only after the standards have been established thatone can gauge the totality of the right to a healthyenvironment. It is at this point that violation of theright can be described or pointed without any difficultyboth by the victim of the violation and the arbiter inany dispute. Finally it is only at this point that the victim can invokeSection 58 of the Statute. Learned Counsel for theApplicant contended that the plaint did not allege theestablishment of the said standards, that they had beenviolated and in what manner. Learned Counsel for theRespondent replied that paragraphs 3 and 6 of the plainthad clearly pleaded the particulars. That the Plaintiff’scase was not based on the Statute and so he need notplead the particulars therein. This Court would havesettled for the latter argument but for what I am goingto point out here below.

It is trite law that in deciding the issue of cause ofaction only the plaint has to be looked: In the presentaction the plaintiff stated in paragraph 3 of his reply tothe written statement of defence –

“3. In reply to the Defendant’s paragraphs 8 and9 the plaintiff avers that his legal right to sue

emanates from the right to a healthyenvironment under the same NEMA statute(Act) Section 4.”

The plaintiff is bound by this pleading. It is in thisvein that I now hold that no right has been defined byNEMA under part VI of the Statute. I proceed fromthis premise to hold that the plaint has failed toestablish the first essential element for a cause ofaction, viz., a defined right (enjoyed by the plaintiff).

In view of the above holding, I find little difficulty inholding that the plaint fails on the second and thirdessential elements. The AUTO GARAGE case (ante)is authority for the legal proposition that “ the provisionthat a plaint not disclosing a cause of action shall berejected is mandatory.” I shall follow this decision inthe present case.

The second point raised by Counsel for the Applicantconcerned the right to sue. Section 5 of the Statutereads –

“5 (1). There is established a body to be calledthe National Environment ManagementAuthority in this Statute referred to as the“Authority.”(2).The Authority shall be a body corporatewith perpetual succession and a common seal.(3).The Authority shall, in its own name becapable of suing and being sued and doing andsuffering all acts and things as bodies corporatemay lawfully do or suffer.”

Contrast this with the provisions of section 4(2), whichreads –

“(2) Every person has a duty to maintain andenhance the environment, including the dutyto inform the Authority or the localenvironment committees of all activities andphenomena that may affect the environmentsignificantly."

I find and hold that NEMA is the only person vestedwith the power and duty to sue for violations committedunder the Statute; further that the only recourseavailable to every person whose right under this Statuteis violated is to inform NEMA or the local environmentcommittee of such violation. The plaintiff has no locusstandi to sue for any violation under this Statute.

Counsel for the Applicant also sought to have the plaintrejected under Order 7, r. 11 (c) because of paymentof insufficient fee. I consulted with the High Court

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Civil Registry and was given to understand that basedon paragraph 8 of the plaint, the correct fee ought tohave been Shs. 157,000/= (Shillings One hundred andfifty seven thousand shillings only). As a matter offact, there was a general receipt on the court fileshowing Shs. 9,000/= (Shillings nine thousandshillings only) as “fees for Civil Suit 465 and 466/2000” i.e. two suits. As is clear from the head of thisruling, the parent suit for this application is C.S. 466,I was utterly amazed by the vehement assertion byCounsel for the Respondent that the required fees werein fact paid etc. I would not buy this argument. RatherI would not reject the plaint under rule 11(c) withoutfirst ordering the Plaintiff to pay the correct fee andafter the plaintiff disobeys the court order.

To conclude the application is hereby upheld and theplaint rejected for the reasons I have endeavoured togive. The Plaintiff shall pay the costs of thisapplication.

G. TinyinondiJUDGE. 24/01/2001

7/2/200: 9:20 am

Ms. Kembabazi holding brief for Mr. Byenkya for theApplicant/Defendant.Mr. Alenyo for the Respondents.Jolly – Court Clerk.Court: An affidavit of service dated 6/2/2001 indicatesthat Counsel for the Respondent was duly served buthe is not here.

SignedDeputy Registrar

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This application was brought by way of notice ofmotion under Order 48 Rules 1 and 2 of the CivilProcedure Rules, s.109 of the Civil Procedure Act andS.72 of the NEMA Statute.

It sought a temporary injunction to stop the respondentfrom concluding a power purchase agreement with theGovernment of Uganda until the “NationalEnvironment Management Authority (NEMA)” hadapproved an Environmental Impact Assessment (EIA)on the project.

The motion further sought declarations that suchapproval of the EIA is a legal pre-requisite and thatendorsement of the project by Parliament withoutNEMA approval of the EIA would contravene a lawand thus be illegal, null and void and of no effect.

HELD

1. In the circumstances of the case, the applicant hasreason to seek the intervention of this court in sofar as no approval of the environmental aspects ofthe study has been brought in evidence to satisfythe requirements of s.20 (b) of the NEMA Statute.To this extent, he’s entitled to bring the action.

2. I am able to declare though not in terms of thedeclaration sought that the EIA’S presented by therespondents consultant in this project must beapproved by the lead agency and the NationalEnvironment Management Authority.

3. The declaration sought by the appellant relatingto parliamentary approval is unnecessary to

NATIONAL ASSOCIATION OF PROFESSIONAL ENVIRONMENTALISTS

VERSUS

AES NILE POWER

(H.C. Misc. Cause No. 268 of 1999)

High Court at Kampala (Hon. Mr. Justice Richard Okumu Wengi) April 19th 1999

Civil procedure: application-order 48 r 1 & 2, s.109 Civil Procedure ActCivil Procedure: cause of action-what procedures to follow-whether remedies available to applicantCivil procedure: temporary injunction-conclusion of PPA-approval of EIA by NEMA -whether procedure

adopted in seeking relief under S.72 NEMA Statute was competent

consider since parliament would equally beadvised and is capable of knowing their power.Since no approval has been given by Parliament,this court can’t inquire as to whether it will or willnot grant the approval in contravention of the law.

In the circumstances, the declarations sought in themotion are not granted; save that this court declaresthat approval of the EIA by NEMA is required unders.20 of the NEMA Statute.

The injunction is also refused.

RULING

This application by way of Notice of Motion wasbrought under Order 48 Rules 1 and 2 of the CivilProcedure Rules, section 101 of the Civil ProcedureAct and Section 72 of the NEMA Statute which I taketo refer to the National Environment ManagementAuthority Statute 4 of 1995. It seeks a temporaryinjunction to stop the Respondent concluding a powerpurchase agreement with the Government of Ugandauntil the “National Environment ManagementAuthority (NEMA)” has approved an EnvironmentalImpact Assessment (EIA) on the project.

The motion further seeks declarations that suchapproval of the EIA is a legal pre-requisite and thatany endorsement of the project by Parliament withoutthis EIA approval would contravene the law. The endresult is that the applicant is asking Court to stopsignature of the agreement with the Executive anddeclare that its endorsement by Parliament withoutNEMA approval of the EIA would contravene a law

46

and thus be illegal, null and void and of no effect. Themotion was supported by the affidavit of Mr. FrankMuramuzi, the President of the applicant, a Non-Governmental Organization active in the area ofenvironment protection. When the application camefor hearing the Respondents were not represented norwere they in Court. There was no clue that theRespondents were contesting the claim. An affidavitof service was filed indicating that process was servedon the Respondents’ Chief Administrator Mr. HenryKikoyo who signed and stamped on a copy of themotion on 29th March 1999. On an application byCounsel for the applicant, this matter proceeded ex-parte.

Mr. Kenneth Kakuru learned Counsel for the applicantsfirst tussled with the issue of procedure. He submittedthat under the NEMA Law there was no prescribedprocedure to be followed by an applicant who seeks aremedy under that law. Counsel submitted that undersection 72 of the NEMA Statute any party who feelsthat the environment is being harmed or is under threatof being harmed may bring an action to prevent orstop such harm and obtain an order from Court if theenvironment has been harmed to restore it. He urgedthis Court to hold that in the circumstances the mainissue was that there was a danger of a law beingviolated and all that he needed was a declaration tothis effect and an order to prohibit the infringement.Counsel submitted that there was no pecuniary claimagainst the Respondent or any injury claim as suchbut that whereas an Environmental Impact Study (EIS)has been submitted by the Respondent forconsideration and approval by NEMA, the Respondentwas in high gear of having the ImplementationAgreement and Power Purchase Agreement approvedand executed before the NEMA approval. LearnedCounsel referred this Court to Articles 2.8 (a) of theImplementation Agreement that states: -

“(a) The Company shall prior to Financialclosing conduct or cause to be conducted anEnvironmental Impact Study in accordancewith the Laws of Uganda. Such EnvironmentalImpact Study shall be subject to approval bythe Government of Uganda.”

Learned Counsel further pointed out that underparagraph 3.2 of the same agreement the Governmentof Uganda would on signing the agreement proceed tocompulsorily acquire the site, the staging area and theinundated land and the U.E.B shall acquire rights tothe route, way leaves and easements. Mr. Kakurucontended that since signing these agreements wouldtrigger all these activities, it would enable the

Respondents circumvent the law in contravention ofwhich the project would be endorsed. The NEMAapproval which is progressing at its Statutory pacewould be rendered meaningless if not nugatory. Thedanger of acting in this way and getting Parliament toendorse the project and the Executive to sign theagreements prior to the approval by NEMA was thatthe NEMA law would have been contravened in theprocess. Mr. Kakuru argued that by-passing NEMAprocedures, which was possible so long as Parliamentand the Executive actions above had been concluded,was the bone of contention. He further contended thatthe NEMA procedure was a protective measure whichthe public who are concerned with the project wouldinvoke as part and parcel of public protection of theenvironment and accessing the Constitutionalguarantee of the right to a clean and healthyenvironment. He submitted that the NEMA procedurewas a necessary ingredient of this right and that theshort cut being adopted by the Respondent to avoidcompliance was in effect directed at violating theNEMA Statute and ultimately the Constitutionalregime of Environmental rights in Uganda.

Mr. Kakuru then referred to Order 37 of the CivilProcedure Rules and argued that the requirementtherein for there to be a pending suit when seekinginjunctions was inapplicable. He stated that this was acase of public interest litigation to protect a public rightwhile Order 37 was restricted to property disputes,private law rights in contract and tort. Counsel arguedthat this was the reason why although he sought anorder of a temporary injunction, he did not proceedunder Order 37 of the Civil procedure Rules. He citedNakito & Brothers Ltd. Vs. Katumba to support theview that under Section 2 of the Civil Procedure Act aNotice of Motion is a suit. He prayed that this Courtaccepts the motion and entertains it as such and grantthe relief sought. He contended that EnvironmentalLaw has opened up new horizons for litigation andadjudication having codified common law especiallyin respect of locus standi and procedure that is requiredto take an urgent track. This complied with the newConstitutional Mandate on a clean and healthyenvironment which required that such matter be dealtwith expeditiously by Notice of Motion rather than byway of a plaint. Counsel contended that this actionwas about breach of law whereby the respondentnavigates his project around NEMA procedure andpresses for Parliament to endorse it and the Executiveto sign the deal.

I must confess that I found it difficult diagnosing theclaim and the remedy in this case. In the first place theproposed implementation agreement which has been

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initially stipulated, in article 2.8 cited earlier, that EIAshall be subject to approval by the Government ofUganda. The respondent only undertook to conductthe study which it did and left the approval process tothe Government. In other words, the respondent doesnot have to or want to subject himself to the processof getting the approval which the other party, thegovernment has the responsibility to do. If thereforethe Government executes the agreement as it is, theseterms would be binding and this Court cannot speculatethat indeed the agreements would or would not besigned before the approval of the impact study byNEMA. It would however not be difficult to expectthat such approval would be obtained after which theproject can be considered environmentally viable andcan be implemented. But the suspicions and concernsraised by the applicant that unfortunately have not beendispelled by hearing the respondents or reading anycounter raised many issues.

The level of suspicious regard towards the Respondentwas clearly brought out by the argument that themoment the agreements are signed major actions bythe Government and UEB are set in motion renderingNEMA procedures superfluous. It was further broughtout by Counsel for the applicants’ reference to thebrittle low capital base of the Respondents whose sharecapital was Shs.1,000,000/= only yet it was headedfor a US $ 500 million project with massive civil works.This he argued, could not promise much for the“Polluter-pays” principle of environmental law.Counsel contended that the unlikelihood of therespondent company passing through the eye of theneedle placed in its way by NEMA process and criteria,made the alternative of the shortcut attractive to therespondents. In clause 3.2 of the implementationagreement, the respondent is specifically protectedagainst environmental liabilities that may not encumberany land acquired by the Government and UEB besidesNEMA approval being the responsibility ofGovernment in the first place. Finally counsel for theapplicants while praying for the orders and declarationssought in the motion, stated that no orders for costswere being sought in this matter which was brought asa public interest issue.

As correctly sensed by counsel for the applicant theissues raised by this application relate to whether thereis a cause of action, what the procedures should beand if the remedies sought are available to theapplicant. I would rather approach it this way and as aresult be able to determine if the matter is not frivolous.In his submission, Counsel contended that theapplication was not frivolous as it was brought toaddress legal concerns. Violation of the law, he said,

was not a frivolous matter. Counsel argued that theapplicant being an NGO has come to Court seekingthe enforcement of the law which was in danger ofbeing violated in the process of which the public rightto environmental protection was being infringed. Hesubmitted that the alteration of the environment beingplanned by the Respondents could or could not beharmful. The impairment of the environment couldonly be determined by the process of approval of theEIA by NEMA.

As can be seen, this application is canvassing wideenvironmental concerns. It is only in looking at thelegal basis of these concerns that the issues can bedetermined. According to the National Objectives andDirective Principles in the Constitution of Uganda thestate is empowered to promote sustainabledevelopment and to prevent or minimise damage anddestruction to land, air and water resources resultingfrom pollution or other causes. The state and localgovernments are further enjoined in the EnvironmentalObjectives (Objective No. XVII) to create and developparks, reserves and recreation areas and ensure theconservation of Natural Resources. It shall alsopromote the rational use of natural resources so as tosafeguard and protect the bio-diversity of Uganda.Article 245 of the Constitution mandated Parliamentto provide by law, measures intended to protect andpreserve the environment from abuse, pollution anddegradation; to manage the environment for sustainabledevelopment and to promote environmental awareness.

The NEMA Statute No. 4 of 1995 is for the purpose ofthis provision such a law being then the existing law.Now under this Statute, environmental ImpactAssessment studies are required before anydevelopment project such as the one pursued by therespondents is approved. The respondent hasconducted the study having appointed W S AtkinsInternational as the study Consultants. This isannexture B to the second supplementary affidavit ofMr. Muramuzi. In this affidavit the deponent statesthat the study as presented did not address the issue ofthe loss of the Bujagali Falls and the appropriatenessof acquiring alternative cheaper and environmentallymore friendly sources of power. The deponent statesfurther that whatever information was provided inrespect of this, and in particular, in respect of KarumaFalls was incomplete and misleading. The deponentthen states that this together with the ambiguity in thename of the Respondent was likely to lead to rejectionof the study by NEMA and to reflect on the capacityof the Respondent to carry on the proposed projectwithout resort to an environmental disaster. The studywas conducted for “AES Nile Power,” a joint venture

48

between AES Electric Ltd., a UK wholly ownedsubsidiary of the AES Corporation, a US Companyand Madhvani International of Uganda – according tothe W S Atkins Executive summary (annexture B).According to the first supplementary affidavit, Mr.Muramuzi averred that contrary to this statement theRespondent is not a foreign Company but a localcompany with only Shs.20,000/= paid up capital. Hedoubted the capacity of such an entity to execute aproject of the magnitude proposed without causinggreat environmental destruction, massive flooding andelimination of the spectacular Bujagali Falls. He furtherdeponed that a failed project would interfere with thenatural flow of the River Nile and cause otherenvironmental products without even producingElectric Power. He lastly deponed that the investmentlicense held by the respondent had no capacity todemonstrate ability to mitigate environmental damagebefore signing any agreement as required by the law.In presenting its case the applicant relied on section35 and 72 of the NEMA Statute and Regulations madeunder that law and suggested that the legal regime forenvironmental protection was a novel area withimprecise justiciability issues.

Section 35 of the NEMA Statute prohibits certainworks on rivers and lakes that affect the flow or thebed and or divert or block a river or drain a river orlake. Section 72 of the Statute provides the parallelavenue for a person to apply to Court notwithstandingany action by the NEMA authority for anenvironmental restoration order against a person whohas harmed, is harming or is likely to harm theenvironment. Sub section 2 of that section provides –

“(2) For the avoidance of doubt it shall not benecessary for the Plaintiff under this section toshow that he has a right of or interest in theproperty in the environment or land alleged tohave been harmed or in the environment or landcontiguous to such environment or land.”

The Environmental Impact Assessment is a study thatis required to be conducted as the guidingenvironmental regulation model for implementationof certain projects. Dams on rivers is one such projectas stated in the Third Schedule. Electrical Infrastructureis another. In section 97, it is a criminal offence forany person to fail to prepare an EIA contrary to section20 of the Act. And a person who fraudulently makes afalse statement in an environment Impact Statementcommits an offence. I have however not been able topin point the consequence of proceeding with a projectonce one has placed an impact study with NEMA orno green light has come from NEMA. Section 20 (6)

of the NEMA Statute requires that the environmentalaspects of a project as spelt out in an EnvironmentEvaluation be approved first.

The above describes briefly the general legal landscapewhere the applicants concerns are located. The firstissue is whether the procedure adopted by him is properand competent. There is no prescribed procedure toseek environmental relief under section 72 cited byCounsel. The reading of sub-section 2 of that sectionwould however imply two things. Firstly it refers to aPlaintiff. This would in my mind directly refer toproceeding by way of plaint. Secondly this sectionappears to be the enactment of class actions and publicinterest litigation in environmental law issues. This isbecause it abolishes the restrictive standing to sue andlocus standi doctrines by stating that a plaintiff neednot show a right or interest in the action. There is alsoan administrative remedy available in section 69 ofthe Statute which empowers NEMA to issueenvironmental restoration orders. Section 71 empowersNEMA to enforce its own orders. The recourse to Courtis however subjected to exhaustion of this remedy asthe section 72 proceeding before Court is withoutprejudice to the powers of NEMA under section 69 ofthe Statute. But even then this application does notseek order under section 72 of the NEMA Statute.

Although the applicant cited the section and contendedthat the respondent is likely to harm the environmenthe has not prayed for an order to restore theenvironment. What he has sought is an injunction tostop the signing of the agreements and declarations.An injunction of this nature cannot be given in myview since the agreements per se do not alter theenvironment though the execution thereof places therespondent in a position so as to be able to alter theenvironment by commencing works. I would concludehere that if this is correct then the order sought relatesto a matter that by itself is not proximate toenvironmental damage as such though the signedagreement could be evidence of a reasonable likelihoodof possible harm about to be done to the environment.

Without going into the realm of freedom of contract, Iwould find it hard to prevent the act of signing theagreement as such. Partly I am aware of executivediscretion in this matter, which I hope would beexercised with full awareness that a procedure such asthe conduct of an acceptable EIA has to be compliedwith, and the government or its agency has to besatisfied that the works envisaged will not damage theenvironment. I think the executive is bound to followthe law and a remedy would be available if indeed aprivate party caused it to go into a hazardous project.

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There are many procedures available. For instancewrits of certiorari, prohibition and mandamus areavailable.

Also proceedings under Article 50 of the Constitutionon breaches of an environmental right or freedomwould be available. In all these proceedings, a noticeof motion would be the correct pleading in my view tocommence these actions. However, since the applicantdid not move this Court for the above remedies, I wouldhave difficulty reaching a decision that injunctive anddeclaratory relief could be secured by proceeding theway the applicant did without invoking Article 50 ofthe Constitution and the Fundamental Rights andFreedoms (Enforcement) Rules S.I 26 of 1992. Thelatter rules made under the repealed Judicature Act1967 are applicable in my view to proceedings underArticle 50 of the Constitution as they were saved bythe Judicature Act 1996.

Counsel for the applicant asked this Court to entertainthis application on the ground that the applicant hadcome to Court for redress and could not be turned away.I have already stated that the applicant had a right totake action without having to show standing to sue onaccount of the clear provisions of the NEMA Statute.However, standing to sue is a procedural question nota substantive one like the issue of cause of action. Butit is also true that a declaratory action is open to anindividual without having to demonstrate a cause ofaction.

In other cases a cause of action needs to be raised inthe pleadings and where the cause of action isobviously and almost incontestably bad, the Courtwould not entertain the matter. Otherwise a party wouldnot be driven from the judgment seat without havinghis right to be heard. In deciding whether there is acause of action one looks ordinarily only at the plaint(or pleadings). The case of The Attorney-General Vs.Olwoch - (1972)EA 392 is authority for this point, andhas been followed in other cases after it. This is theposition which obtains in other jurisdictions on thisquestion in respect of civil actions and even publicinterest law suits which the applicant claims his ownto be. In the Canadian case of Operation Dismantle &Others Vs. The Queen and Others (1983) ICF 429 themotion sought to bar the testing of Cruise Missiles inCanada which the Plaintiff contended violated theCanadian Charter of Rights. The Court stated thatbeyond the statement of claim it could not admit anyfurther evidence and the statement stands and falls onthe allegations of fact contained in it, so long as theywere susceptible to constituting a scintilla of a causeof action. The test to be applied was whether the germ

of a cause of action was alleged in the claim. The Courtfurther held that if the statement contained sufficientallegations to raise a justifiable issue, then even theclaim cannot be corrected by amendment and therewas no compliance with rules of practice this does notrender the proceedings void in which an irregularityoccurs which can be corrected by an amendment. TheSupreme Court of Nigeria in Thomas & Others Vs.Olufusoye(1987) LRC (Const.) 659 defined cause ofaction to:

“Comprise every fact (though not every pieceof evidence) which it would be necessary forthe plaintiff to prove if traversed to supporthis right to the judgment of the Court …every fact which is material to be proved toenable the plaintiff to succeed. The words,have been defined as meaning simply afactual situation the existence of whichentitled one person to obtain from the Courta remedy against another person and it isthe subject matter or grievance founding theaction, not merely the technical cause ofaction.”

The Nigerian Supreme Court in that case cited thedictum of Lord Pearson in Drummond – Jackson Vs.British Medical Association (1970) 1 WLR 688 (C.A.)where it was held:

“Where the statement of claim discloses nocause of action and if the Court is satisfiedthat no amendment however ingenuous willcure the defect the statement of claim will bestruck out and the action dismissed. Whereno question as to the civil rights andobligations of the plaintiff is raised in thestatement of claim for determination thestatement of claim will be struck out and theaction dismissed.”

I have discussed these issues because the argumentsraised by Counsel for the applicants claim beyond justthe ordinary private law rights litigation to the widerissues relating to public interest law and a situationwhere a party merely seeks declaratory orders relatingto compliance with the law failure of which haspotential danger for the environment.

I am satisfied that in the circumstances of this case theapplicant has reason to seek the intervention of thisCourt in so far as no approval of the environmentalaspects of the study has been brought in evidence tosatisfy the requirements of section 20 (6) of the NEMAStatute. To this extent he is entitled to bring this action.

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As a public spirited body, the applicant is espousingthe public interest although I must say he has done sorather too quickly, almost prematurely. To this extent Iaccept to entertain the application which thoughprocedurally faulty could be cured by amendment. Inany case there was no challenge put forward by therespondents and the applicant would be at liberty topursue further his substantive claims by filing amendedpleadings in place of the motion filed in Court. I amable to declare though not in terms of the declarationsought that the EIAs presented by the Respondent’sconsultant in this project must be approved by the LeadAgency and the National Environment ManagementAuthority. This is the distance I can go in this matter.It has already been stated earlier that it is the view ofthe Court and I restate it that the signing of the protestedagreements are the subject of the law. It is howevernot for this Court to stop the signing of agreements byinjunction or otherwise since signing agreements perse does not cause environmental disasters. If anagreement is signed and it is in contravention of anylaw, then it can be challenged. Any action based on itcan also be challenged. Therefore it is in the interestof the parties to it to conform to the law.

The declarations sought by the applicant relating tothe Parliamentary approval is unnecessary to considersince Parliament would equally be advised and iscapable of knowing their power. Since no approvalhas been given by Parliament this Court cannot inquireas to whether it will or will not grant the approval incontravention of the law. In the circumstances the

declarations sought in the Motion are not granted; savethat this Court declares that approval of the EIA byNEMA is required under Section 20 of the NEMAStatute. The injunction is also refused. This matterproceeded ex-parte. I am surprised why this was thecase. I must say that a party must come to the Court tobe heard. In Court matters epistolary proceedings havenot taken root in this Country. No amount of mediaaction, or reaction though effective can be substituteto going to Court to challenge ones adversary. To ignoreCourt Summons is itself fool hardy and places the partyso summoned in a desert. However, no costs were askedfor this action and I order none.

SignedRICHARD O. OKUMU WENGIAg. JUDGE19/04/.99

23/04/99:Kakuru for Applicants

Henry Kikoyo representing the respondents.Court; -Ruling delivered in the presence of the above parties.SignedGODFREY NAMUNDIDEPUTY REGISTRAR, CIVIL.

JUDGMENT

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DR. BWOGI RICHARD KANYEREZI

VERSUS

THE MANAGEMENT COMMITTEE, RUBAGA GIRLS SCHOOL

(H.C. Civil Appeal No.3 of 1996)

High Court at Kampala (Hon. Mr. Justice E.S. Lugayizi) February 17th 1998

Civil Procedure: Whether a permanent injunction can be granted on the use of toilets

This is an appeal. The appellant (Dr. Bwogi RichardKanyerezi) having been dissatisfied with the judgmentand decree of His Worship Aweri Opio dated 7th

December, 1995, appealed to this Honorable Court andprayed for the following remedies,

1. That this appeal be allowed and the Decree ofthe Chief Magistrate’s Court be set aside withcosts.

2. That a permanent injunction be granted againstthe respondent preventing it from using the 12VIP latrines situate on the lower end of its schoolpremises.

The background to this appeal is briefly as follows.The appellant a medical doctor who has been residingat plot No. 170 Mugwanya Road Rubaga since 1972,filed Mengo Civil Suit No. 218 of 1994, against therespondent which is running Rubaga Girls School. Hismain complaint was that the respondent wasconstructing 12 VIP latrines at the lower boundary ofits school which directly adjoins the plaintiff’s home.And this would by reason of the attendant bad smellconstitute a nuisance by unreasonably interfering withand diminishing the appellant’s ordinary use andenjoyment of his home. The respondent denied theabove, claim. When the case came up for hearing, theappellant called four witnesses. Those witnesses toldcourt three important facts. First of all, that theappellant’s home was very close to the 12 VIP toiletsin issue. Secondly, those VIP toilets by nature emitsmelly gases through their vent. Thirdly, that the toiletsin issue which were being used by over 600 studentsconstantly emitted smelly gases; and those gases wentdirectly into the appellant’s house, thus making lifevery uncomfortable for its inhabitants. According tothe appellant those gases constituted a nuisance in law.In the circumstances he needed a permanent injunctionto restrain the respondent from using the said toilets.

On the other hand, the respondent’s side called twowitnesses who basically told court two things. First ofall that the appellant’s home was quite far away fromthe respondent’s VIP, toilets. Secondly, that VIP toiletdid not emit smelly gases. Such gases wouldimmediately be diluted by air or get oxidized themoment they came out of the VIP toilets’ vent. As aresult the respondent’s side submitted that noinjunction should issue against it.

The respondent also argued that even where the trialcourt found against it on the merits of the case, sincethe VIP toilets’ programme was a Governmentprogramme again court would be prevented by S.15of the Government Proceedings Act (Cap 69) fromissuing an injunction against it. The respondent’s sidetherefore called upon the trial Magistrate to dismissthe appellant’s action.

After the trial Magistrate had apparently visited thelocus he agreed with the respondent’s side on all theabove facts. As a result he dismissed the appellant’saction with costs.

It is against that background that the appellant appealedto this Honourable Court. While the appellant wasrepresented by Mr. Kanyerezi Sewanyana, Mr.Bwengye represented the respondent in this appeal.The Memorandum of appeal consisted of threegrounds. The first two were consolidated and arguedas one ground at the time of hearing this appeal.

However, because I sincerely believe that the substanceof this appeal revolves around the issues below, I willsimply concentrate on those issues which are asfollows:

1. Whether the VIP toilets in issue emitted smellygases which reached the appellant’s home;

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2. In case they did, whether such gases constituted aprivate nuisance, which is actionable in law: and

3. The proper remedies in this appeal.

I will deal with the above issues in relation to theevidence on record in the order in which they occur. As far as the first issue is concerned, PW4 a formerK.C.C. health Inspector told the lower court that VIPtoilets by nature emitted smelly gases; and that is whythey were always located on the leeward side of otherpremises. He further pointed out that in the instant casethe respondent’s VIP toilets were built on the windward side of the appellant’s house and their vent wasbelow that house. He then argued that the above beingthe case, the smelly gases from those toilets were likelyto flow straight into the appellant’s double storeyedhouse on the opposite side.

That aside, PWl, PW2 and PW3 also told the lowercourt that the VIP toilets in issue constantly emittedsmelly gases, which reached the appellant’s house.

That evidence was neither shaken nor contradicted byanyone, let alone DWI (the Headmistress of thedefendant’s school) who could not confirm or deny it.To me therefore, after considering all the above, I amsatisfied that the appellant had on a balance ofprobabilities proved in the lower court that therespondent’s VIP toilets emitted smelly gases whichreached his home. One wonders why the trialMagistrate decided to overlook all the above evidenceand consequently come to the wrong conclusion. Bethat as it may, the first issue is answered in theaffirmative.

Concerning the second issue, according to Winfieldon Tort Eighth Edition pages 353 – 367, a nuisance isprivate where it exclusively affects a private personand not a sizeable number of the community where itoccurs. The learned authors of the said book describeda nuisance as an unlawful interference with a person’suse or enjoyment of land. Such interference in essencebeing either of a continuous or recurrent nature andusually stenches and smoke would qualify under thatdescription. Despite that, however, the said writerscontinued to say that whether a nuisance is actionableor not will depend upon a variety of considerationsespecially the character of the defendant’s conduct anda balancing of conflicting interests (i.e. the right ofthe defendant to enjoy his property as he wishes asagainst the right of his neighbours to enjoy theirswithout interference etc, etc.). Where the defendanthas acted reasonably, irrespective of the fact that hisactions may lead to a nuisance, such a nuisance would

not be actionable, otherwise it would be. Lastly, themere fact that the action or process or business givingrise to the nuisance complained of is useful to thepublic generally, is not a good defence.

According to PWl’s and DWl’s evidence, it is onlyPWI who has been complaining of the nuisance.such a nuisance would not be actionable.Lastly, the mere fact that the action orprocess or business giving rise to the nuisancecomplained of is useful to the public generally, is nota good defence.

According to PWI ‘s evidence, it is only PWI who hasbeen complaining of the smelly gases in issue. ActuallyPWI appears to be the only close neighbour to therespondent on his side of the locality. As a result it is,in my view, reasonable to say that those gases almostexclusively affect the appellant in the locality underconsideration. As far as PW3 was concerned, the saidgases were most smelly in the evenings. And thatcaused the appellant’s, family to close the windows ofthe sitting room and dining room at that time, but eventhen the bad smell would filter into the house.

The above evidence which was not shaken orcontradicted clearly shows that by their interferencewith the appellant’s enjoyment of his residence thosesmelly gases caused the plaintiff’s family greatinconvenience and discomfort. That in my viewconstituted a private nuisance to the plaintiff.

In addition to the above, PWI also told the lower courtthat when the respondent was constructing the saidtoilets, he tried to negotiate with it. That was donewith a view to having it change its mind in respect ofthe location of those toilets. However, the respondentdid not agree. That was despite the fact that it had otheralternative spots on its land where it could locate thesaid toilets. Further to the above, the said toilets werebuilt on the wind ward side of the appellant’s house;and according to PW4 that meant that the smelly gasesfrom them would go straight into the appellant’s house.

All the above evidence was also not shaken. To me, it,at least, shows unreasonableness on the part of therespondent. It would appear the respondent did notcare whether the appellant was inconvenienced or notat his residence by the smell, which was bound tocome from those toilets that were to be very frequentlyused every singly day by such a big number of people(i.e. over 600 people).

For the above reason therefore the private nuisance inissue is, in my view, actionable in law. The fact that

53

the respondent’s school benefits society does not justifythe existence of the said nuisance. In the circumstances,the second issue is answered in the affirmative.

Concerning the third issue, first of all it was argued bycounsel for the respondent’s side (Mr. Bwengye) thateven where the appellant sued in respect of the firsttwo issues, court was prevented by section 15 of theGovernment Proceedings Act (Cap. 69) from issuingan injunction against the respondent in this matter.According to Mr. Bwenge, to issue an injunctionagainst the respondent was the same thing as issuingit against Government. That was so, since the VIPtoilets’ programme was a Government programme.

For the sake of clarity, I will reproduce below, theprovisions of section 15 of the GovernmentProceedings Act (Cap. 69). They read as follows,

“15 (1) In any civil proceedings by or againstthe Government the court shall, subject to theprovisions of this Act, have power to makeall such orders as it has power to make inproceedings between private persons, andotherwise to give such appropriate relief asthe case may require. Provided that

(a) where in any proceedings against theGovernment any such relief is sought as mightin proceedings between private person begranted by way of injunction the court shallnot grant an injunction but may in lieu thereofmake an order declaratory of the rights of theparties and;

(b)………

(2) The court shall not in any civil proceedingsgrant any injunction against an officer ofGovernment if the effect of granting theinjunction would be to give any relief againstthe Government which could not have beenobtained in proceedings againstGovernment.”

While in subsection (1) above the prohibition is inrespect of any proceedings against Government, “thatin subsection (2) above is in respect of an officer ofGovernment” in any civil proceedings if the effect ofgranting the injunction, etc. would be to give any reliefagainst Government which could not have beenobtained in proceedings against Government.

It is quite obvious that we do not have the abovescenario in this matter. The suit in issue was neitheragainst Government nor was any order against anyofficer of Government sought under it. In fact the saidsuit was against a private respondent which is theexclusive owner of the VIP toilets in issue. Onetherefore wonders why Mr. Bwengye held the aboveerroneous view!

Be that as it may, since the appellant succeeded inrespect of the two issues he must also succeed in respectof the third one. All in all therefore, this appeal hassucceeded. And as a result the following orders aremade,

1. This appeal is allowed and the decree of the ChiefMagistrate’s court is hereby set aside.

2. A permanent injunction preventing the respondentfrom using the 12 VIP toilets situate on the lowerend of the respondents school premise is heregranted.

3. To allow the respondents time to relocate the abovetoilets or to make alternative arrangements inrespect of the above permanent injunction shall nottake effect immediately but after 90 days from thedate of this judgment

4. Costs of this appeal and of the suit in the lowercourt shall be paid by the respondent.

E.S. LUGAYIZIJUDGE.

17/2/98

Read before: At 9.45:

Mr. Sekatawa for ApplicantMr. Tibesigwa for RespondentMr. Mulindwa court

E.S. LUGAYIZIJUDGE.17/2/98

54

RULING: NO.2

This is an application brought under Article 22 (1) ofthe Constitution of Uganda seeking certain declaratoryorders on the grounds that certain fundamental rightsand freedoms have been infringed by the ConstituentAssembly Election Rules. When it was called forhearing, learned Counsel for the Respondent, Mr. NasaTumwesige, raised a preliminary objection upon whichthis ruling has been made.

Mr. Nasa Tumwesige contended, on behalf of theAttorney General, that this application is incompetentand not properly before this Court because it does notcomply with section 1 of the Civil Procedure andLimitation (Miscellaneous Provisions) Act 1969,hereinafter referred to as Act 20 of 1969. Section 1 ofthe said Act, he submitted, required, before any suitwas filed against Government, a statutory writtennotice of 60 days setting out facts constituting the causeof action. The word suit in this section bore themeaning ascribed to it in Section 2 of the CivilProcedure Act and in learned Counsel’s view includeda Notice of Motion as in the present case. Mr. NasaTumwesige submitted that no statutory notice asrequired by Section 1 of Act 20 of 1969 was servedupon the Attorney General in respect of this presentapplication whose main thrust is against theConstituent Assembly Election Rules 11 and 12. Mr.Tumwesige contended though, that the AttorneyGeneral was served with a Statutory Notice on the 26th

November 1992 which notified the Attorney Generalthat the applicants intended to invoke the provisionsof Article 22(1) of the Constitution of the Republic ofUganda against the implementation of Sections 11(1),11(2) and 12(1) and 12(10) schedule 1ll of theConstituent Assembly Bill as it was likely that thoseprovisions would contravene the applicants rights

under Articles 8(2)(b), 18(1) and 20(1) of theConstitution. Mr. Tumwesige argued that no action wasfiled by the applicants following the statutory noticeand in his view this statutory notice has since expired,as the Constituent Assembly Bill was passed into lawand assented to by the President on 14/5/1993. Mr.Tumwesige submitted that the basis of the presentapplication, or, if I understood him correctly, that thecause of action in the present application is not thecause of action in the statutory notice that was servedupon the Attorney General. The cause of action in thestatutory notice was the Constituent Assembly Bill andnow the cause of action in the present application isthe Constituent Assembly Statute and theaccompanying rules.

He referred this Court to the following cases wherethe lack of a proper notice had been considered:Alexander Okello -vs- Attorney General Misc. CauseNo. 137 of 1992; and Cecilia Ogwal & 2 Ors. -vs- D.Aof Mbale & 3 Ors. He prayed that this applicationshould be dismissed with costs.

In reply, learned counsel for the applicants, Mr. BenWacha and Mr. Okumu Wengi addressed court insuccession. Mr. Ben Wacha submitted that the StatutoryNotice dated 25th November 1992 and served upon therespondents on 26th November 1992 complied withSection 1 of Act 20 of 1969. He submitted that thesubstance of the Bill especially those aspectscomplained of in the Statutory Notice were the samein substance and also word as in the ConstituentAssembly Statute and the Election Rules. He submittedthat the present application is based upon the samecontentions as those in the Statutory Notice.

Learned counsel further submitted that the applicantscomplained that the implementation of certain rules

DR. J.W. RWANYARARE, HAJI BADRU K. WEGULO & MACARIOUS B.ASUBO

VERSUS

THE ATTORNEY GENERAL

(H.C. Misc. Applic. No. 85 of 1993)

High Court at Kampala (Hon. Mr. Justice F.M.S. Egonda – Ntende) December 2nd 1993

Civil Procedure: whether declaratory orders can be issued to enforce fundamental rights and freedoms

55

contained in the Bill would contravene the applicants’various fundamental rights and freedoms and thepassing of the Bill to the Statute. He submitted thatwhat was important is that the cause of action, or thefacts complained of in the Notice must be substantiallythe same as those contained in the suit. He contendedthat the notice dated 25th November 1992 adequatelyinformed the Respondents of the action to be takenagainst them. He referred this court to Rajabi-vs- State AIR/1973/Bombay 59 and DUTT -vs- EastPunjab Province AIR/1958 (Punjab) 351 whichconsidered the objects and sufficiency of a Noticesimilar to the one required under Section 1 of the Act20 of 1969. He also referred this Court to Das -vs-Union of India & Another AIR [19891 S.C 674 andSingh -vs- Union of India AIR SCR 78t which is quotedtherein. He prayed that this court finds the notice validand dismisses the preliminary objection accordingly.

Mr. Okumu Wengi submitted that it was enough forthe notice to provide sufficient facts. The notice didnot expire unless the suit was barred as a result of timerunning out after the Notice. He referred to the caseof Rwakosoro -vs- Attorney General [1979] HCB 24.

Mr. Okumu Wengi further submitted that theimplementation of the Bill consisted of 3 parts. (1)Legislature (2) Executive Action and (3) Theadministrative/Quasi Judicial implementation of theStatute by the Commission. This, he submitted, wasthe gist of the cause of action, which is a continuingcause of action in the form of a Constitutional Tort.The enactment of the Law could not abate the causeof the action but on the contrary matured the cause ofaction. He concluded that the present cause of actionappeared futuristic but was a gift of the Constitutionitself. He prayed for the dismissal of the preliminaryobjection.

At the close of submissions, I drew the attention of Mr.Tumwesige to the provision of Articles 22(1) and 22(5)of the Constitution and sought to hear counsel’s viewas to whether section 1 of the Civil procedure andlimitation (Misc. Provisions) Act was consistent withthe aforesaid provisions. Mr. Tumwesige replied thatParliament should have enacted a different law underArticle 22(5) of the Constitution but in absence of adifferent law we must go by what Parliament has madewhich is Act 20 of 1969. It may be useful to set outpart 2 of the Statutory Notice which formed the cruxof this preliminary objection. It states:

“(2). The facts constituting the cause of actionwhich arose on the 16th day of October 1992are as follows: On the 16th day of October 1992

the National Resistance Movement NRMGovernment published a Bill entitled “TheConstituent Assembly Bill, 1992 meant toregulate elections to, and the operation of theConstituent Assembly." Clause 4 (3) of the Billestablished the Constituent Assembly (ElectionRules).

Under Section 11(1) of the said rules it is providedthat “Elections for delegates shall be non -partisan andevery candidate for election as a delegate within anelectoral area shall stand and be voted for by votersupon personal merit and Section 11(2) of the rules &provides that “Any person who uses or attempts touse any Political Party... as a basis for such a person’scandidature or election as a delegate commits anoffence.”

Section 12(1) of the Rules also provides that “For eachelectoral area the Returning Office shall prepare andconduct a programme to be known as "candidatesmeetings” and Section 12(10) of the rules providesthat public rallies and any form of public demonstrationin support of or against, any candidate shall not bepermitted and any person who organises or participatesin any such rally or demonstration commits an offence.

The applicants will invoke the provisions of Article22( 1) of the Constitution of the Republic of Ugandain that the implementation of sections 11(1), 11(2),12(1) and 12(10) schedule III of the ConstituentAssembly Bill 1992 is likely to contravene their rightsunder Articles 8(2)(b), 18(1) and 20(1) of theConstitution of the Republic of Uganda and will seeka declaratory order that the said sections of the saidschedule are unconstitutional.

The present application seeks declaratory orders, interalia, to the effect that the implementation of theConstituent Assembly (Election Rules); Rules l1(a),11(2), 12(1) and 12(10) is likely to contravene theapplicants right as provided under Articles 8(2)(b), 17(1), 18(1) and 20( 1) of the Constitution. The substanceof the rules set out in the schedule to the ConstituentAssembly Bill is the same as the Constituent AssemblyElection Rules attached to the Statute.

The question before me is whether the notice referredto above amounts to a notice of the subsequentapplication. Put differently, is the cause of actionset out in the Statutory Notice the same as the one setout in the application now before this Court.

Before I resolve the said issue let me start byconsidering the objects of a notice under Section 1 of

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the Civil Procedure and Limitation (MiscellaneousProvisions) Act and what must constitute a valid notice.Asthana J, in the case of Rwakosoro and 5 Ors -vs-The Attorney General [1982] HCB 40, opined that theperiod of 60 days prescribed under the Act is intendedfor the purpose that the Government may investigatethe claim and if possible settle it out of Court.

In the Indian case of Rajabai -vs- State AIR [1973]BOM 61, the court considered the object of a noticeunder section 8 of the Civil Procedure Code whichhas been said to be in pari materia as Section 1 of Act20 of 1969. The Court stated: ... in Chandulal-vs-Government of the province of Bombay AIR 1943BOM. 138 a division bench of this court had consideredthe object of giving notice. Beaumont CJ deliveringthe Judgment of the Division Bench observed asfollows:

“The cause of action which is to be stated inthe notice, is the bundle of facts which go tomake up the right in respect of which theplaintiff proposes to sue and it is obvious thatbefore the suit can be brought, it may be thatthe bundle of facts will be added to orsubtracted from and I do not myself think thatthe notice is invalidated because it refers to apossible additional claim, consequential uponthe cause of action specified therein and statesthat if such additional claim arises, theplaintiff will sue also in respect of it."

If therefore a consequential claim arises as stated inthe notice and the suit is filed after the consequentialclaim materialises although the same had notmaterialised at the date of the notice, the notice doesnot become invalid. The learned judges also observedin regard to the object of section 80 as follows:

“The object of Section 80 is to give the Secretary ofState for India an opportunity of settling the claim, ifso advised, without litigation, or, to enable him to havean opportunity to investigate the alleged cause ofcomplaint and to make amends; if he thought fit, beforehe was impleaded in the suit.”

Similar are the observations of a Division Bench ofthe Punjab High Court in Dutt -vs – East PunjabProvince AIR 1958 Puni.: 351. It observed as follows:

“The object is sufficiently satisfied if the notice informsthe defendant generally of the nature of the suitintended to be filed and the relief sought to be claimed.”

As can be gathered from the above cases, the object ofa notice under Section 1 of Act 20 of 1969 is to givean opportunity to Government to investigate the claimintended to be filed against it and if possible settle itout of court. The notice should therefore contain thefacts giving rise to the plaintiffs intended claim againstgovernment. The facts given in the notice shouldestablish generally the rights of the intending plaintiffin relation to which he wishes to bring a suit againstgovernment. There are instances where the actscomplained of occurred in one single transaction whichwas completed. There may be instances where the actscomplained of had not occurred but were in processand would involve the happening of several othermatters. In such a case an intending plaintiff wouldstill be entitled to give notice even before the processis completed as was the case in this matter.

The applicants issued a notice, which they served uponthe Attorney General. It informed the Attorney Generalthat the implementation of Rules 11(1), 11(2), 12(1)and 12(10) schedule III of the Constituent AssemblyBill 1992 was likely to contravene the applicants rightsunder Articles 8(2)(b), 18(1) and 20(1) of theConstitution of Uganda. Secondly, the applicantsinformed the Attorney General that they will seek adeclaratory order that the said schedule isunconstitutional. The applicants thus brought to theattention of the Attorney General their rights whichthey perceive to be threatened by the legislative processwhich was to culminate in the enactment of the Billinto a Statute and the implementation of the Statuteitself. The applicants notified the Attorney General ofthe relief, which they intended to seek.

In the present application, the applicants complain thattheir fundamental rights and freedoms as provided byArticle 8(1)(b), 17(1), 18(1) and 20(1) are threatenedby the Election Rules attached to the ConstituentAssembly Statute. The Rules complained of are thesame rules as are found in the Bill and the notice servedupon the Attorney General.

In my view, the Attorney General was informed in thenotice served upon him of the facts constituting thepresent application. The mere fact that at the time therewas a Constituent Assembly Bill and now the Bill hasbeen enacted into a Statute does not change the causeof action at all. The rights alleged to have been or likelyto be threatened or infringed upon by theimplementation of the Bill as stated in the applicantsnotice are the same rights complained of in the presentapplication. There is therefore no change of cause ofaction as argued by Mr. Tumwesige.

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I do hold therefore, that the Statutory Notice dated 25th

November 1992 served by the applicants upon theAttorney General was good and valid notice whichsatisfied the objects of a notice under Act20 of 1969 in relation to the present application. Inspiteof this, I do not think that such a notice was at allnecessary in the present proceedings.

In my view, I wish to state that in action founded onArticle 22 of the Constitution, there is no need at allfor the Applicant to serve a notice upon the AttorneyGeneral under Section 1 of Act 20 of 1969 becausethe jurisdiction granted to the High Court under Article22 of the Constitution is exclusive. Article 22 states:

“1. Subject to the provisions of clause (5) ofthis Article if any person alleges that any ofthe provisions of Article 8 to 20 inclusive hasbeen, is being or is likely to be contravenedin relation to him, then, without prejudice toany other action with respect to the samematter that is lawfully available, that personmay apply to High Court for redress.2. The High Court shall have originaljurisdiction to hear and determine anyapplication made by person in pursuance ofclause (1) of this Article, and may make suchorders issue such writs and give suchdirections as it may consider appropriate forthe purpose of enforcing or securing theenforcement of any provisions of the saidArticles 8 to 20 inclusive to the protection ofwhich the person is entitled.Provided that the High Court shall notexercise its powers under this clause if it issatisfied that adequate means of redress forthe contravention alleged are or have beenavailable to the person concerned under anyother law.3. ……………..4 ......................5. Parliament may make provision, or mayauthorise the making of provision with respectto the practice and procedure of any Courtfor the purpose of this Article and may conferupon that Court such powers, or mayauthorise the conferment thereon of suchpowers, in addition to those conferred by thisArticle as may appear to be necessary ordesirable for the purpose of enabling thatCourt more effectively to exercise thejurisdiction conferred upon it by this Article."

The jurisdiction granted to this Court under Article 22(1) is subject only to the provision of Article 22(5)which provides for the enactment of law to providethe practice and procedure of a court in relation to thejurisdiction granted by Article 22(1) of the constitution.As Mr. Tumwesige conceded, Act 20 of 1969 was notmade in fulfillment of Article 22(5) of the Constitution.Infact it does not purport to lay down the procedureand practice of this court in relation to enforcement ofthe fundamental rights and freedoms. This is very clearfrom the preamble to the Act which states:

“An act to provide for the giving notice beforecertain suits are instituted; for the limitationof certain actions; for the protection againstactions of persons acting in the execution ofpublic duties and for purposes incidental toa connected with the matter aforesaid."

The matters referred to are not the matters envisionedby Article 22(5) of the Constitution. Act 20 does notenable the Court

“More effectively to exercise the jurisdictionconferred upon it by Article 22(1)."

On the contrary, if Section 1 of Act 20 of 1969 washeld to be applicable it would be a hindrance to personsseeking the protection of their fundamental rights andfreedoms by barring such persons from applying toCourt for redress immediately the provisions of Article8 to 20 of the Constitution are contravened or evenwhen they are just likely to be contravened. It wouldact as a hindrance as it would impose a sixty dayswaiting period before seeking redress which wasintended to be provided to the persons applying for itwith the utmost dispatch by this Court.

The practice and procedure of this Court in relation tothe jurisdiction granted to this Court by Article 22 isnow contained in the Fundamental Rights andFreedoms (Enforcement procedure) Rules 1992 S.I.No. 26 of 1992 made under Section 20 of the JudicatureAct 1967. Section 20 thereof states:

“1. The Chief Justice may, by StatutoryInstrument, makes Rules of Court regulatingthe practice and procedure of the High courtfor the purpose of Article 32 of theConstitution.

Rules of Court made under the provision ofthe preceding subsection may confer on the

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High Court such powers, in addition to thoseconferred by the provisions of Article 32 ofthe Constitution, as may appear to the ChiefJustice to be necessary or desirable for thepurpose of enabling the High Court moreeffectively to exercise the jurisdictionconferred upon it by that Article.3………..”

The present Article 22 of our Constitution is the sameas Article 32 in the 1966 Constitution, which is referredto in Section 20 of the Judicature Act. Even before the1967 Constitution came into force, Parliament hadauthorised under Section 20 of the Judicature Act, theChief Justice to make the Rules of procedure andpractice for this Court in relation to the enforcementof Article 8 to 20 of the Constitution. The Chief Justicepromulgated the Rules of procedure under S.I No. 26of 1992. Rules 2 provides:

“In these rules, unless the context otherwiserequires “application” means an application tothe High Court under clause (1) of Article 22 ofthe Constitution for redress in relation to thefundamental rights and freedoms referred to inArticles 8 to 20 of the Constitution."

Rule 3 provides for the procedure in making theapplication. Rule 8 applies, subject to S.I No. 26 ofthe 1992 Civil Procedure Act and Rules madethereunder to the proceedings under S.I No. 26 of 1992.

In my view, the Constitution under Articles 22(1)created jurisdiction, which was subjected only to theprovisions of Article 22(5). The provisions authorisedthe making of rules, which have been made. Thoseprovisions are exclusive and an intending applicantneed not look at other legislation as far as procedureis concerned except that made under Article 22(5) ofthe Constitution. In arriving at this conclusion 1 drawfortitude from the decision of the Court of Appeal forEast Africa in the case of National InsuranceCorporation -vs- Kafeero f1974] E.A 477. In that casethe respondent sued the appellant as nominal defendantin respect of injuries caused by unidentified vehicle.He had given the notice required by the Traffic andRoad Safety Act 1970, S.44 (2) but not that requiredby the Civil Procedure and Limitation (MiscellaneousProvisions) Act, 1969 S.I. The High Court held thatthe notice under the latter Act was not required.Nyamunchoncho J, (as he then was) stated:

“1 am inclined to the view that when the nominaldefendant is sued a notice pursuant to section 44 ofthe Traffic Act is all that is required. If I am mistaken

in this, I would still hold that a notice given underSection 44 to the nominal defendant satisfies therequirement of Section 1 of Act 20 of 1969 by virtueof section 44 of the Interpretation Act."

The Court of Appeal arrived at the same conclusion.SPRY Ag. P at page 478 provided the followingexplanation, which was substantially echoed by theopinions of Mustafa and Musoke, J.J.A:

I see the matter in a somewhat different light.Sections 40 to 48 of the Traffic Act create rightsof action and also contain and also containprocedural provisions, including provisionsfor notice clearly intended to give theappellant corporation reasonable opportunityto investigate claims while the evidence isfresh. It seems to me that the legislatureenacted what amounts in a small way, to acode, and that its provisions including as theydo both substantive and procedural law wereintended or must be deemed, so far as theyextend to be exclusive.”

Mustafa J.A put it thus:

“... because the Traffic Act has specialprovisions granting certain substantive rightsas well as laying down a reasonablycomprehensive set of rules of procedure forenforcing such rights. A litigant suing underthe provisions of the Traffic Act has to complywith provisions of the Traffic Act…”

The nature of jurisdiction granted under a similarArticle to Article 22 of our Constitution was consideredby Privy Council in the case of Jaundoo -vs- AttorneyGeneral of Guyana [1971] Ac. 972 on appeal from theCourt of Appeal for Guyana. At the time the Parliamentof Guyana had not made provisions for the practiceand procedure of the High Court in the enforcementof similar fundamental rights and freedoms. LordDiplock while delivering the opinion of the PrivyCouncil stated at page 983:

“That right is expressed to be subject only tothe provisions of paragraph (6). So long asnothing has been done by Parliament or bythe rule making authority of the SupremeCourt of Judicature ordinance, to regulate thepractice of procedure upon such applications,the right to apply to the High Court underparagraph 1 remains in their Lordships viewunqualified. To “apply to the High Court forredress” was not a term of art at the time theConstitution was made. It was an expression,

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which was first used in the Constitution of1961 and was not descriptive of anyprocedure, which then existed under rules ofCourt for enforcing any legal right. It was anewly created right of access to the High Courtto invoke a jurisdiction which was itself newlycreated by Article 13(2) of the 1961Constitution now replaced by Article 19(2).These words in their Lordships view are wideenough to cover the use by an applicant ofany form of procedure by which the High Courtcan be approached to invoke the exercise ofany of its powers. They are not confined to theprocedure appropriate to an ordinary civilaction, although they would include thatprocedure until other provision was madeunder Article 19(6). The clear contention ofthe Constitution is that a person who allegesthat his fundamental rights are threatenedshould have unhindered access to the HighCourt is not to be defeated by any failure ofParliament or the rule making authority tomake specific provision as to how that accessis to be gained."

My understanding of the above opinion of the PrivyCouncil is two fold. In the first instance that thejurisdiction created by Guyana’s Article 19(2)equivalent to our Article 22(1) is that such jurisdictionis subject to only the equivalent of our Article 22(5)of the Constitution beyond which it is unqualified. Nolaw made by Parliament dealing with ordinary CivilActions against Government, as in our case, the CivilProcedure and Limitation (Miscellaneous Provision)Act, 1969 would regulate applications under Article22(1) of our Constitution. The law to regulate suchapplications must be made pursuant to and inconformity with Article 22(5) of the Constitution. TheCivil Procedure and Limitation (MiscellaneousProvisions) Act is definitely not made pursuant to orin fulfillment of the provisions of Article 22(5) of ourConstitution.

Secondly, that the intention of the Constitution underArticle 22(1) was to create new jurisdiction for theHigh Court (it did not exist until 1962 Constitution)so that a person who alleges that his fundamental rightsare threatened should have unhindered access to theHigh Court. Act 20 of 1969, if it were held to apply tosuch applications as the present one, would berestricting access to the High Court which is not theintention of the Constitution.

The above opinion of the Privy Council was referredto with approval by the Court of Appeal of Guyana inthe case of Attorney General-vs- All & 4 Ors [1989]LRC (Const ) 474 which was considering anapplication under the equivalent of our Article 22( 1)of the Constitution. Harper JA stated at page 526:

“In my view, a citizen whose constitutionalrights are allegedly trampled upon must notbe turned away from the Court by proceduralhiccups. Once a complaint is arguable a waymust be found to accommodate him so thatother citizens become knowledgeable of theirrights."

The present preliminary objection is no doubt aprocedural hiccup intended to stop this applicationfrom being heard. However, for the reason given above,I am not inclined to allow that to happen. I would holdthat Section 1 of the Civil Procedure (MiscellaneousProvisions) Act, 1969 does not apply to the applicationmade to this Court under Article 22 (1) of theConstitution of Uganda. I would dismiss thepreliminary objection with costs.

F.M.S. EGONDA-NTENDEJUDGE2/12/1993.

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RULING

From the affidavit of the second plaintiff FRANKMUTUA NGUATU sworn on 8.11.2001 is anannexture entitled “Final Report” which is anEnvironmental Impact Assessment of Titanium Miningin Kwale District May 2000 prepared by namedscientists organised by a coalition of Non-Governmental and Community Organisationsinterested in the project to mine titanium in Kwale.The report says in part,

KWALE is an administrative district of Kenya lyingon the South Coast of the country between longitude38°. 31 and 39°. 31 East, and latitudes betweenlatitudes3.30 and 4.45 South. It borders on the Republicof Tanzania on the North East of that country andadjoins Mombasa Town. It is 8322 Km. in area and 62Km. About (0.73%) of its area is covered with eitherfresh or salty water and from its waters fish anddrinking water for humans and animals depend. On itsCoastline runs 3 to 5 Km. of Living coral reef and aCoastline with mangrove swamps.

It says on page 6 thus: -

“In the Vumbu-Maumba area the Titanium oredeposits constitute about 5.7% of the Magarinisediments. The concentration reducessouthwards to 3% Nguluku area. The Titaniumdeposits mainly occur in aliments and retilewith specific gravity of 4.72 and 4.2 to 4.3respectively. The Zirconium containingmineral in this case is Zircon, which has aspecific gravity of 3.9 to 4.7. The specificgravity shows that these are heavy mineralsand hence are deposited at similar sites throughsedimentation in reverine, laccestrie andmarine water.

“The Msambweni complex of mineral depositshas about 2.8 million tonnes of limenite. 1.0

million tonnes of tutile and 0.6 million tonnesof Zircon. They occupy an area, which is about3 Km. Long, 2 Km. Wide and are generally25 to 40 m deep. First the limenite containsup to 47.90/0 titanium oxide. Iron contents isalso high being about 51.1 % and there arelow levels of Calcium, Magnesium andManganese. Secondly the native is a highgrade source of Titanium containing about96.20/0 of the metal, finally Zircon inMsambweni contains about 66.0% ofZirconium.”

TIOMIN KENYA LTD. the Defendant here is a localcompany, incorporated in Kenya and is a fully ownedsubsidiary of the Canadian Company called TIOMINRESOURCES INCORPORATED of Canada. It hastaken up licences to prospect for the above mineraland now is poised to mine. It is at this stage that thelocal inhabitants the majority of whom are the plaintiffshave filed a case against the said mining company in arepresentative capacity.

The substantial case has two main prayers, first, aninjunction to restrain the plaintiffs from carrying outacts of mining in any part of land in Kwale Districtand secondly a declaratory order that the mining beingcarried in Kwale is illegal and thirdly for GeneralDamages. The-suit was filed on 27.2.2001 and this wasfiled simultaneously with a Chamber Summons ofsame date for injunction under Order 39 IT (1)(2) ofCivil Procedure Rules for order that the court dorestrain the defendant from undertaking any action ofmining on any land in Kwale District. Supportingaffidavits are by Rodgers Muema Nzioka sworn on27.2.2001, Frank Mutua sworn on 27.2.2001, furtheraffidavit by Rodgers M. Nzioka sworn on 19.3.2001and lastly by Munyalo Sombi and some othersupplementary affidavits. They state that they act onbehalf of other plaintiffs who are mere ordinary ruralfarming inhabitants of the area of Kwale nowdesignated for mining. From there they say they have

RODGERS MUEMA NZIOKA & 2 OTHERS

VERSUS

TIOMIN KENYA LIMITED

(H.C.Civil Case No. 97 of 2001)

High Court of Kenya at Mombasa (Justice A.I. Hayanga ) September 21st 2001

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eked a living enabling them to support themselves andthat they have boreholes there from where they drawwater, that when titanium was discovered there theplaintiff mining company promised a reasonablecompensation to land owners on giving their land, thatthe inhabitants would be relocated to some other placeand that there would be no acquisition until LandControl Board had consented. It is the concern of theapplicant that notwithstanding the understanding theDefendants have arm twisted the inhabitants andcaused them to accept very low compensatory rate ofKsh. 9000/= per acre for re-allocation and Ksh. 2000/= per acre per year in rent. The applicants are sorelyapprehensive that the excavation of titanium is likelyto trigger multifarious environmental and healthproblems. They have relied on the researched reportrendered by scientists from the Kenyatta Universitywhich is annexed to their affidavit of support.

In his arguments the Counsel for the Plaintiffs sayshis clients are not opposed to the mining but want theirenvironment and health to be secure. They want theMining Company to give them reasonablecompensation and to settle them in a new place to buildschools and hospitals there and to be resettled like itwas done by the Japanese Electric DevelopmentProject in Sondu Miriu River in Nyanza, Kenya.Counsel argued:

• that the Defendant is operating illegally in variousways, that Tiomin Resources Inc. of Canada isthe prospecting licence holder yet it is TiominKenya Limited doing the prospecting and ormining.

• That in their drafted Environmental ImpactAssessment Report (para 29 CF 170) the area ofactivity is said to be 5 sq. km. Yet the area isactually 56 sq. km.

• That the Respondents have started using the landbefore obtaining consent of the owners and alsoconsent for change of user under Section 26 ofthe Land Control Act Cap 302, that the foreigncompany Tiomin Corporation of Canada fullyowns Tiomin Kenya Limited and therefore anyland transaction involving such a foreign companybeing controlled transaction ought to getPresidential exemption. (He referred to Sections22 & 26 of Land Control Act Cap 302). That theDefendant has not drawn a comprehensiveresettlement plan, nor shown that plan it has putinto place to avoid the effects of exposed titanium,to redress radioactivity, or sulphur dioxidepollution, or dust pollution.

• That the Defendant Company has not submittedappropriate Environmental Impact AssessmentPlan and has not been licenced under Section 58of E.M.C. Cap 8 of 1999 and therefore itsactivities are illegal.

The applicants quoted several authorities from theCOMPENDIUM OF JUDICIAL DECISIONS ONMATTERS RELATED TO ENVIRONMENT UNEP/UNDP and discussed the provisions of EMC Act No.8of 1999.

From these arguments the applicant relies on theprinciple of GIELLA VS CASSMAN BROWN CO.LTD. 1978 EA 358 to show that they have a primafacie case with probability of success and that theenvironmental damage likely to be occasioned cannotbe adequately compensated in damages but if court isin doubt to decide then matter on a balance ofconvenience.

Mr. Ochwa Learned Counsel for the Defendant assistedby Mr. Ogola and Mr. Mogaka opposed this applicationrelying on 4 affidavits of COLLIN FORBES and 322-annexfiles. The affidavits are sworn variously on6.3.2001, 16.3.2001, and 23.4.2001. The case for theDefendant from the affidavits and arguments ofCounsel is that they are not mining but in fact aremerely prospecting and that the terms “mining” and“prospecting” are distinct in meaning within theMining Act Cap 306 of the Kenya Laws and that theCommissioner of Mines and Geology has infact issuedspecial licences No. 157, 158, 170 and 173 to theDefendant. That the licences can be assigned to aNominee. Referring extensively to the licence C.F.3Counsel argued that the Defendant has duly compliedwith the terms of the licence given to it under theMining Act Cap 306 and that there is nothing that ithas done which is not authorised by the provisions ofthat Act. That Tiomin Kenya Limited the DefendantCompany is agent of Tiomin Resources Inc. of Canadaand so licences Numbers B/7295/9025 are beingassigned to Tiomin Kenya Limited and in any caseMining Act Cap 306 allows prospector to act throughan agent. The Defendant says that the special licencecontains all the conditions a prospector licensee isrequired to observe and there is no alleged breach ofthose conditions and in fact Government ProvincialAdministration Officers have been supervising itsoperations.

The Defendant says that the application is prematurebecause what is being done so far is merely testingcompliance with prospecting terms of the licence yetapplicants say that they are mining. With regards to

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the ill effects of titanium the Defendant claims thatthere is no evidence that harmful effects have been sofar experienced and that Defendant has not even asyet obtained mining licence. The Defendantdemonstrated how it has met all the time with the localprovincial administration officers and the local peopleaffected and discussed the relevant issues like that ofcompensation and the issuance of Title Deeds andexplaining to the local people the company’s’ initiativesin those meetings. Of land owners who in fact hadsigned their consent, he said they ought to be stoppedfrom being party to this suit and from disclaiming theamount they had accepted in compensation throughwritten contracts of transfer with knowledge ofvaluation done by Fairlane Valuers Limited. Thedefendant argued that the plaintiffs are mere squattersand lack proprietary interest and should be none-suited.The Defendant has already prepared and submittedImpact assessment report to the Government using allavailable material.

I have been referred to several authorities on this matterby Counsel for the parties who both argued this casewith erudition and circumspection and the court isobligated to them for their thoroughness.

The application is for prohibitive injunction andnormally in exercise of its general jurisdiction the courtgoes by the traditional principles enunciated by theCourt of Appeal per Spry Ag. J .A. in GIELLA VSCASSMAN BROWN & CO. LTD. (1973) EA 358.

First the position is that granting of interim injunctionis an exercise of Judicial Discretion and in East Africathose conditions for granting of interlocutoryinjunction are now settled as I have stated above.

The question may well be asked if legal cases basedon Environment are to be resolved on any distinctprinciples, but the answer is that if there is distinctlaw of Environment it is not exclusive, and mostenvironmental disputes are resolved by application ofprinciples of Common Law, like law of tort, property,injunctions and those principles of administrative law,but the applicable law is the statute law which in thiscase is THE ENVIRONMENTAL MANAGEMENTAND CO-ORDINATION ACT NO.8 OF 1999(thereinafter referred to EM C). It is imperative to resortto this statute to decide whether the claimant not onlyhas entitlement to an action but a case for injunctionwith probability of success. Section 3 (1) of the EMCAct provides:

“3. (1) Every person in Kenya is entitled to aclean and healthy environment and has the duty

to safeguard and enhance the environment.(2) The entitlement to a clean and healthyenvironment under subsection (1) includes theaccess by any person in Kenya to the variouspublic elements on segments of theenvironment for recreational, education, health,spiritual and cultural purposes.

(3) If a person alleges that the entitlement conferredunder subsection (1) has been, is being or is likely tobe contravened in relation to him, then withoutprejudice to any other action with respect to the samematter which is lawfully available, that person mayapply to the High Court for redress and the High Courtmay make such orders, issue such writs or give suchdirections as it may deem appropriate to:-

a) prevent, stop or discontinue any act oromission deleterious to the environment;

b) compel any public officer to take measuresto prevent or discontinue any act oromission deleterious to the environment;

c) require that any on going activity besubjected to an environment audit inaccordance with the provisions of this Act;

d) compel the persons responsible for theenvironmental degradation to restore thedegraded environment as far as practicableto its immediate condition prior to thedamage; and

e) provide compensation for any victim ofpollution and the cost of beneficial useslost as a result of an act of pollution andother losses that are connected with orincidental to the foregoing.

(4) A person proceeding under subsection (3) of thissection shall have the capacity to bring an actionnotwithstanding that such a person cannot show thatthe defendant’s act or omission has caused or is likelyto cause him any personal loss or injury provided thatsuch action:

a) is not frivolous or vexatious; orb) is not an abuse of the court process.

(5) In exercising the jurisdiction conferred upon itunder subsection (3), the High Court shall be guidedby the following principles of sustainable development;

a) the principle of public participation in thedevelopment of policies, plans andprocesses for the management of theenvironment

b) the cultural and social principles

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traditionally applied by any community inKenya for the management of theenvironment or natural resources in so faras the same are relevant and are notrepugnant to justice and morality orinconsistent with any written law;

c) the principle of international co-operationin the management of environmentalresources shared by two or more states;

d) the principles of intra-generational andintergenerational equity;

e) the polluter-pays principle; andf) the pre-cautionary principle.

The provisions show that this court is empowered bythe section quoted to adjudicate on the matter and haswide powers to effect redress, but the complainantsought to show that his rights or any of them reservedin Section 3(1) of the EMC Act Cap 8 of 1999 iscontravened. That entitlement is stated as follows:

Every person in Kenya is entitled to a cleanand healthy environment and has the duty tosafe guard and enhance the environment.

3(2) The entitlement to a clean and healthyenvironment under subsection (1) includes the accessby any person in Kenya to the various public elementsor segments of the environment for recreational,educational, health, spiritual and cultural purposes.And “element” is described in Section-2ofthesame Actas:

“any of the principal constituent parts of theenvironment including water atmosphere,soil, vegetation climate sound, adouraesthetics fish and wildlife."

It means that anybody who is entitled to these elementshave a right to prosecute his cause in court. It wouldtherefore not support the argument that some of theplaintiffs do not have sufficient entitlement to bringthe case to court or that they have no Title Deeds orthat they are squatters. Section 11(2) of EMCsays that plaintiff does not need to show that he has a‘ right or interest in the property, environment or landalleged to be invaded. That seems to be the law.

After observing these preliminary matters the mainissue I see in this case is that for the applicants to showa prima facie case they ought to show that what theDefendants are proposing to do is unlawful. Injunctioncannot be applied to restrain what is lawful.

The Defendants have shown that whatever they have

done has been under licence properly issued inaccordance with the provisions of Mining Act Cap 306of the Kenya Laws and when they came to do what isyet not done they will likewise have to be licencedand there is no evidence that they are threatening toact outside the law. They have also submittedresearched professional Environmental ImpactAssessment Report under Section 58 of theEnvironmental Management Co-ordination Act No.8of 1999 under that Act.

Everybody that intends to do anything under secondschedule to the Act inclusive of mining, quarrying andopen cast extraction of precious metals, gemstones,metalliferous ores, coal, limestone, dolomite, stone andslate, aggregate sand and gravel, clay, exploration forthe production of petroleum in any form and extractingalluvial gold, with use of mercury and processing ofminerals reduction of ores and minerals, smelting andrefining of ores and mineral etc. before suchundertaking submit a project report to the NationalEnvironment Management Authority in the prescribedform then the proponent of the project is to submit anenvironmental Impact Assessment study and report to-enable the authority to determine the effect and impactof the project on the environment. It is an offencepunishable with 24 months imprisonment per Section138 of the EMC Act No.8 of 1999 not to do so.

It is the Defendants case that it has prepared andsubmitted its contents to the authority but the authorityhas not replied. Under Section 58(9) if DirectorGeneral fails to reply in 3 months then the applicantmay start his undertaking , the absence of an EIAnot withstanding, but this may need circumspection.

The Defendants/Respondents have not shown that theyhave submitted their project report and theirEnvironmental Impact Assessment report. Theydisplayed the EIAR but no evidence of Project Report,which does appear to be prerequisite to the submissionof the assessment report. It may be the reason why thedefendant has not taken up the liberty under Section58(9) to proceed with the project unilaterally.

If the Defendant has not fulfilled the requirements ofSection 58 of EMC Act 8 of 1999 then it is immaterialthat it is licensed under Mining Act Cap 306 becauseSection 58 of the same EMC Act Cap 8 of 1999provides that:

“58(1) Notwithstanding any approval, permitor licence granted under this Act or any otherlaw in force in Kenya, any person, being aproponent of a project, shall, before financing,

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commencing, proceeding with, carrying out,executing or conducting or causing to befinanced, commenced, proceeded with, carriedout, executed or conducted by another personany undertaking specified in the SecondSchedule to this Act, submit a project reportto the Authority, in the prescribed form, givingthe prescribed information and which shall beaccompanied by the prescribed fee."

Proponent must comply with Section 58 of EMC Act.But even had this not been provided, I would hold itas a matter of statutory interpretation that the EMCAct No.8 of 1999 being a more recent Act must beconstrued as repealing the old Act where there isinconsistency.

If the Defendant has obeyed the terms of the MiningAct Cap 306 as it appears, can his acts be avoided bythe later Act? In this case the Defendant has in effectacted as though on the later Act but has equallycomplied with the old Mining Act Cap 306 but whereit conflicts with EMC Act 8 of 1999 I think EMC Act8 should prevail. Two judicial pronouncements (onelocal another English) strengthen my view here:

“that where the provision of one statute are soinconsistent with the provisions of a similar butlater one, which does not expressly repeal theearlier Act, the courts admit an implied repeal.”

It is not possible to read compliance in the old MiningAct Cap 306 when it is an offence in the later EMCAct No.8 of 1999 to fail to submit approved Impactassessment report. The two Acts cannot stand togetherunless the sections of the later Act are made to prevailover those sections of Cap 306 that are parallel to thenew Act. Those that sanction what the new Actcondemns are to be regarded as repealed.

In the Kenyan decision of Harris J. in KARANJAMATHERI V. KANJI [1976] KLR 140 the Judge afterfinding that Land Control Act (Cap 302) was passedon 11.12.1967 and came into operation on 12.12.1967and that Limitation Act (Cap 27) was passed on19.4.1968 and by Section 1 was deemed to have comeinto operation retrospectively on 1.12.1967 said;

“Accordingly, the later of the two Acts cameinto operation first a factor which must in theapplication of the principle of interpretationthat in the case of conflict, the later twostatutes in date of enactment may be regardedas constituting an amendment of the earlier....”

I think the position now with regards to theinterpretation of the entire Cap 306 is that where it isinconsistent with Act No.8 of 1999 the later Act mustprevail. Section 58(2) of EMC Act 8 of 1999 states:

“The proponent of a project shall undertakeor cause to be undertaken at his own expensean environmental impact assessment study andprepare a report thereof where the authoritybeing satisfied after studying the project reportsubmitted under sub-section 1, that theintending project mayor is likely to have orwill have a significant impact on theenvironment so directs.”(3) The environmental impact assessmentstudy report prepared under the sub-sectionshall be submitted to the authority in theprescribed form giving the prescribedinformation and shall be accompanied by theprescribed fee.”

Section 59 provides that the authority after beingsatisfied as to the adequacy of an environmental impactassessment study evaluation or review report, issuesan environmental impact assessment licence on suchterms and conditions as may be appropriate andnecessary to facilitate sustainable development andsound environmental management.

It is imperative that a project like the Kwale projectwhere the effect of uranium and titanium, a radioactivemineral whose effects to environment does affect notonly environment but health ought to pass throughevaluation stated in EIA is stated elsewhere as:

“The EIA is a structured process for gatheringinformation about the potential impacts on theenvironment of a proposed protect and usingthe information, along side other considerationto decide whether the project should or shouldnot proceed, either as proposed ormodifications.”

(See Confirmation of Judicial decisions on mattersrelated to environment National Decision Vol.1 PP 78)

The EMC Act describes it as follows:

Section 2“environmental impact assessment” means asystematic examination conducted to determinewhether or not a programme, activity or projectwill have any adverse impacts on theenvironment;”

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Section 58(5)“Environmental impact assessment studies andreports required under this Act shall beconducted or prepared respectively byindividual experts or a firm of expertsauthorised in that behalf by the Authority. TheAuthority shall maintain a register of allindividual experts or firms of all experts dulyauthorized by it to conduct or prepareenvironmental impact assessment studies andreports respectively. The register shall be apublic document and may be inspected atreasonable hours by any person on thepayment of a prescribed fee.”

Although the Respondents say they had submitted EIA,this is not clear because if they had then they wouldhave started the project after 3 months of DG failingto respond (see Sections 58, SS. 8 and 9 of EMC ActNo.8 of 1999) but this can only be done if they hadsubmitted “a project report.” Their failure to takeadvantage of the action granted in the Act creates areasonable presumption that they have not submittedthe correct Report in time.

Submission of both Project Report and EnvironmentalImpact Assessment is crucial and failure to do so is acriminal offence under Section 138 of the Act. Withoutdelivery of these studies any project that affectsenvironment like the present mining project cannot beassessed. Its potential danger can be as vast and asgruesome as can be imagined nor can it be positivelycontained within principle of sustainable development.In fact without these assessments the project is againstthat principle of sustainable development as it wasargued that this project is an investment and isbeneficial, but this is not near to saying that no changescan be made on environment. Yet sustainable principlein the law of environment means not having lesseconomic development, or preserving the environmentat all cost but, what is required is as it was as stated byLEESON in “Environmental Law” a Text Book, that:

“What it does require is that decisionsthroughout society are taken with properregard to their environmental impact.”

The writer further states that conservation of naturalresources extends beyond the immediate environmentto global issues so that principles to be observed suchas

a) Decision to be based on the best possible scientificinformation and analysis of risk.

b) Where there is uncertainty and potentially seriousrisks exist, precautionary measures may benecessary.

c) Ecological impacts must be considered,particularly where resources are none renewableor effects may be irreversible.

d) Cost implication should be brought home directlyto the people responsible in the polluter paysprinciple, are considered in the Report becausesuch assessment and interrelation of a ray ofdisparate factors require the evidence from EIAto support a sound judgment.

A case based on facts that support any project withoutthat assessment cannot be able to qualify in Giella vs.Cassman Brown Ltd. test.

The issue of Damages compensating anyone does notarise because environmental damage is not only anindividual loss but intrinsic in the globe. Although theprinciple of polluter pays may be argued in aid of thesecond principle of Giella versus Cassman Brown Ltd.but again without EIA it cannot be assessed.

The implication of the phrase is that the cost ofpreventing pollution or of minimising environmentaldamage due to pollution should be borne by thoseresponsible for the pollution, but that does notguarantee that payment will be adequate. There aresome environmental damages that are irreversible,again you need EIA to make a determination on that.

But environmental cases arise from disparate problemand sources. They are unique and in most cases novel,there are no recognized general principles ofapplication, except that with time this will logicallyfollow with sophistication of application, but for nowcourts must apply what is provided for under Section3 of EMC Act 8 of 1999 and although elements of thecommon law are of application such as injunction lawstort and criminal law, the environmental statute hasprovided certain statements of principles which Ibelieve in a purely environmental case like this oneneeds to be considered for application if necessary inconjunction or if appropriate in exclusion of oldprinciples. Here I rely on the old principles inconjunction with the statutory principles I am enjoinedto take into consideration.

Those general principles described in the Act fall intotwo categories without being distinct. On the book ofENVIRONMENTAL LAW by John Leeson (talking

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of a similar English statute) page 34 the writer states:

“On the one hand there is the predominantlyenvironment centered view where remedyingthe pollution or preventing its occurrence is theprimary aim. This category includes theconcepts (like) “the polluter pays” andsustainable development. The second approachis centered more on the economic and/ortechnical practicality of any remedy. Within thiscategory are to be found “best practicablemeans, and best available techniques notentailing excessive cost.”

So regarding the first principle of polluter pays, it isnecessary to use the term to cover obligation on anyperson to conduct their affairs in an environmentallysympathetic fashion. Anyone conducting activity oughtto be aware of and accept responsibility for theenvironmental consequences of that activity, withregards to sustainable development. Constructive viewof the phrase should be development that meets theneeds of the present without compromising the abilityof future generation to meet their own needs. (henceintergenerational equity and intragenerational equity).

For the best practicable means, one would like toconsider whether one has or can do what is practicablein terms of prevention or reduction where theDefendant has discharged the obligation bestowed onhim the nuisance or pollution may be allowed tocontinue.

Again LEESON adds in the same book,

“The application of this principle to existingactivities precludes cessation of the business orprocess because of its environmental impact.The definition and interpretation of the phraseis therefore important in determining the extentof the obligation to remedy and the consequentdegree of pollution permitted in a particularsituation."

On consideration of these principles in anenvironmental case it is not advisable exclusively toapply simply the old principles of injunction becausewhereas activity may be objectionable and ought tobe stopped by injunction yet applying the principle inthe statute of best practicable means, it would be stilla defence under the Law of Environment that thedefendant has done what he can practically do toprevent and or reduce the nuisance or pollution andmay still continue with the activity in a manner notresulting in cessation of the objectionable activities-

because of its environmental impact.

In my judgement I would say that the breaches ofEnvironmental statute should be looked at withoutexclusive trappings of equity in applying the law ofinjunction under Environmental Management and Co-ordination Act No.8 of 1999 but to apply them withclose adherence to what the Statute Law prescribes.Section 3 prescribes general principles of applicationby the court in adjudicating over this kind of case. Firstthe court is given wide discretion to make such ordersby issuing such writs or give such directions as it maydeem appropriate including an order to restore thedegraded environment.

In normal traditional consideration for injunction theGiela Vs Cassman Brown & Co. Ltd. (1978) EA 358one has to prove that his legal rights has beenunlawfully invaded. Here he does not need to show allthat, because under the EMC such person whose rightswould be prejudiced, under Section 3 of Act 8 of 1999

“Anyone shall have the capacity to bring anaction notwithstanding that such a person cannotshow that the defendants acts or omission hascaused or is likely to cause him any personalloss or injury provided that such action is notfrivolous or vexatious, or is not an abuse ofcourts process.”

That is a departure from the application of Giella VsCassman Brown because here he may not be havingany material legal right.”

Here the court is to be guided by principles of publicparticipation, cultural and social principles andprinciples of international co-operation, principles ofintergenerational and intragenerational equity, Polluterpays principle and precautionary principles.

Environmental Impact Assessment report is arequirement of law under Section 58 of EMC and isimportant. The establishment of any undertaking orworks that interrupts nature in any way alwayspossesses certain inevitable forms of impact on itssurrounding so it is by studying the report when it ispossible to assess their effect and therefore determinewhether the project should be determined, allowed orstopped or be raised. The purpose of E.I.A. is to enableresolution to be made on known facts regardingenvironmental consequences.

In USA the Supreme Court there has adopted theapproach, where what is to be proved is mere breachof the statute. In the case of ATCHISON TOPEKA &

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SANTA FE SAIL WAY CO. V. CALLAWAY 392 F.Supp. 610 (DDC 1974) 420 US 908, 95 Sup ct 826(1975).

The court has approved granting of an injunctionwithout a balancing of the equities in order to giveeffect to declared policy of Congress embodied inlegislation.

And in the case in the United States District Court forthe District of Columbia Civil Action No. 75 – 1040SIERRA CLUB NATIONAL AUDIBONSOCIETY: FRIEND OF THE EARTH INC.INTERNATIONAL ASSOCIATION OF GAMEFISH AND CONSERVATION COMMISSIONERSVS WILLIAM T. COLEMAN JR. NORBERTTIEMANN.

The court said:

“A number of courts have previously considered therequirement for a preliminary injunction in the caseof an alleged deficiency in compliance withNATIONAL ENVIRONMENTAL POLICY ACT(NEPA) 42 USC para 4321 which is equivalent to our(Environmental Management and Coordination ActNo.8 of 1999).

The court said:

“That this court agrees that when federalstatutes have been violated it has been a longstanding rule that a court should not inquireinto the traditional requirement for equitablerelief.”

In this USA case the court found that theDefendant (developer) (Federal Highwayadministration) had made 3 breaches incomplying with NEPA requirements. [Similarto our EMC]

The court found that they started building Highwaybefore a decision was taken on statement, when such ought to have been made only after decision-makers had fully adverted to the environmental consequences of the action.

In this case the Defendant has started work withoutsubmitting a project report to the authority. Secondly

it has not presented to the satisfaction of the authorityan Environmental Impact assessment report againstSection 58 of the EMC.

So the question to be asked is what environmentalfactors has the proponent of the project taken intoaccount? None.

This is crucial because in making a decision onenvironmental cases as herein the court is to beconcerned. NOT so strictly with harm to theenvironment but rather the failure of decision makersto take environmental factors into account in the wayEnvironmental Management and Coordination ActNo.8 of 1999 prescribes. (Particularly thatEnvironmental Impact Assessment Report). Thereforeeven if one relied on the principle of Giella vs.Cassman Brown, a case would still be made out.

As for balance of convenience it is admitted thatenvironmental degradation is not necessarily individualconcern or loss but public loss so in a matter of thiskind the convenience not only of the parties to the suit,but also of the public at large is to be considered sothat if the injunction is not issued it means that anyform of feared degradation, danger to health andpollution will be caused to the detriment of thepopulation, whereas if I do not REFUSE injunctiononly the investor will be kept at bay but life willcontinue for the population safely without risk.

It is better to choose the latter other than the former.

A court has in applying the principle of balance ofconvenience to take into account consideration of theconvenience NOT only of the parties but also of thepublic at large.

At this stage not all the facts are in and decisionscannot be made, but on the balance of probabilities Ithink the applicants have made a case for injunctionwhich I hereby grant with cost to them.

Delivered this 21st day of September 2001.

A.I. HAYANGAJUDGE

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RULINGThis is a preliminary objection raised against theplaintiff’s application for an order of injunction dated24.3.97.

Plaintiff filed a suit on 24.3.97 against the defendantclaiming damages and a permanent injunction torestrain the defendant from constructing a dam on oracross Gatharani River and from trespassing on theplaintiff’s land. On the same day, plaintiff filed anapplication for interlocutory injunction to restrain thedefendant from constructing a dam on Gatharaini Riverand from diverting the River water and fromtrespassing on the plaintiffs’ land.

On the same day, an exparte interlocutory injunctionas prayed was granted by Khamoni J. That exparteinjunction is still in existence.

When the application came for hearing inter parties,Mr. Owino for the defendant raised a preliminaryobjection to the application.

The basis of the plaintiffs suit and the interlocutoryinjunction is in summary that:

1. Plaintiff owns land reference No.14883 onwhich it has erected a prestigious and uniquefive star resort hotel/club, conference facilitiesand an 18 hole golf club of international reputeknown as “Windsor Golf and Country Club”unparalleled else where in Kenya;

2. With a view to conserving nature, plaintiff hasnatured, maintained and preserved indigenoustrees on the golf course;

3. The boundary of the land is the center line ofGatharaini River which flows from west to eastand that with the permission, inter alia, ofWater Apportionment Board, it has erected a

dam (Windsor Dam) from which it deriveswater for the maintenance of the Golf course,the trees and grass on the premises;

4. Further plaintiff is a riparian owner withnatural rights “Exjure naturae” to the use ofthe water from the river;

5. Defendant is the owner of the land referencenumber 15153 curved from Kiambu ForestReserve which land does not border theGatharaini River and is separated from theriver by a portion of the forest.

From February 1997, defendant, contrary to the WaterAct, erected a concrete reinforced wall across the riverup stream, erected a temporary water reservoir pendingconstruction of a dam, installing a water pump anddiverting large quantities of water from the river viathe reservoir to its land for irrigated floricultural andhorticultural farming and water storage reservoirsthereby extinguishing the natural flow down streamof Gatharaini River.

Defendants’ actions are crippling the plaintiffs user ofthe Windsor dam and water rights causing the grasson the Golf course and vegetation to wither. Those areof course allegations as the application and suit hasbeen heard.

Mr. Mike Maina the managing director of the defendanthas sworn a replying affidavit. The defendant has alsofiled a defence. The defence is a mere denial of all theallegations in the plaint except that defendant admitsthat it is the owner of the land referred to by theplaintiff. All what Mr. Maina states in the replyingaffidavit is that defendant has leased the land toValentine Growers and therefore defendant is wronglysued. The other thing Mr. Mike Maina is the plaintiffhas come to court with unclean hands as it hasunlawfully and without permission blocked the flow

NAIROBI GOLF HOTELS (KENYA) LTD

VERSUS

PELICAN ENGINEERING AND CONSTRUCTION CO. LTD

(H.C. Civil Case No.706 of 1997)

High Court of Kenya at Nairobi (Justice E.M. Githinji): May 8th 1997

69

of waters of the river thereby out obstructing anddiverting the waters of the river to waste.

Defendant has raised four preliminary objections tothe application namely:

i) As by section 3 of the water Act, water is vestedin the Government, plaintiff has no locus standi tobring the suit.

ii) That it is the Water Appointment Board thatdetermines the utilisation of Water and thereforeplaintiff should have lodged a complaint with theWater Appointment Board.

iii) That plaintiff can only come to court for JudicialReview after all the administrative machineryunder the Water Act are exhausted.

iv) That as the defendant has leased the land toValentine Growers- a firm, plaintiff can only sueValentine Growers and not the defendant.

Mr. Muturi Kigano for the plaintiff has replied thepreliminary objection. He contends inter alia, that HighCourt has Original unlimited jurisdiction, that plaintiffhas permission from Water Board; that defendant hasnot traversed the various breaches complained of; thatthe release was hurriedly registered on 3/4/97 and inany case the lease is invalid in law; that the sameMike Maina M.D of defendant is the representative ofValentine Growers; that riparian rights lie against theoffending land owner and riparian owner can obtainan injunction to restrain the diversion even withoutproof of damages.

Dealing with the first, second and the third objectionstogether, it is true that everybody of water in Kenya isvested in the Government but that is as section 3 ofthe Water Act provides subject to any rights of user toany person granted under the Act or recognized asbeing vested in any other person. As Mr. Kigano states,the Government is a trustee for the public. As theGovernment is the people, the body logically belongsto the people but the Government has to preserve it,control it and apportion it for the general good of thepeople. It is aptly said that Water is life and a veryvaluable Natural Resource. The Governmentcontrols the use of water by requiring that permitsbe obtained for extra ordinary use of water.Such cases where permits are required are specifiedin section 35 of the Water Act and include cases of useof water for irrigation. But by S.38 of the Act, a permitis not required for abstraction or use of water fromanybody of water for domestic purposes by any persons

having lawful access to water and if such abstractionis made without employment of works. This naturalright to use water for domestic purposes is subject tosection 50 and 74 of the Act. By section 60 of the Acta person cannot construct a well within 100 yards orany body of surface water or construct a well withinhalf a mile of another well. By section 74 of the Act,the Government can declare any areas a conservationarea and refuse the extraction of water. A riparianowner is a person who owns land on a bank of a river,or along a river or bordering a river or contiguous to ariver. Under the common law and as permitted bysection 38 of the Water Act, he has a right to take areasonable amount of water from a naturalriver as it flows past his land for ordinary purposessuch as domestic use which includes such things aswatering his animals, his garden. He can even constructa dam so long as it is not within 100 yards of surfacewater-It may be that the wider right or riparian ownerunder common law are limited by the Water Act but itis clear that a riparian owner has the natural right touse the water adjacent to his land for normal use.

For cases where a permit is required, it is an offenceto use the water without the permit (section 36 of theAct). For the use of water where a permit is requiredto apply to the Water Appointment Board for a permitand anybody objecting to the issuing of a license isrequired to file an objection. I can find no provision inthe Water Act which gives any member of public aright to complain to either the Water AppointmentBoard or to Water Resources Authority for use of waterby anybody in the absence of an application for apermit. The objection that the plaintiff should haveexhausted the machinery prescribed in the Water Actwould be valid if the defendant had said that it appliedfor a permit from the Water Appointment Board andthat plaintiff failed to file an objection or appeal. Asthe pleadings and affidavits stand, the defendant hasnot said that such a permit was duly granted.

If it is true, as plaintiff pleads, that the defendant hasnot obtained a permit and if it is true that it hascommitted the acts complained of, then it would havecommitted an offence under S.36 (2) of the Water Act.If such is the case, then the Minister of Water ResourcesAuthority or the Water Appointment Board has powerto prosecute the defendant or take any civil proceedingsagainst the defendant (Section 181). But as section180 (2) of the Act provides, the payment of any suchpenalty does not affect the right of any person to bringany action or take proceedings against the defendantfor alleged illegal construction of the dam and allegeddiversion of water. Plaintiff is such a person and comesto court against the defendants for the alleged illegal

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works and also as a riparian owner. He has a right ofaction under S.180 (2) of the Act.

Further, plaintiff by virtue of being riparian owner whoalleges that defendant is not riparian owner can applyfor injunction under the common law to restrain thenon- riparian for extra ordinary use of water forirrigation purposes. Halisburys Laws of England vol.24page 574 para 1028.As for the objection that the suitand application cannot be maintained against thedefendant has leased the land to Valentine Growers, Inote that the defendant has been granted a 99 year leasefrom April, 1991. If the lease to Valentine Growers isvalid (I am not going to decide on its validity), it is for10 years from 1.11.96 after which it will revert to thedefendant for use for over 80 years. One of the actscomplained of by the plaintiff are of permanent nature.It is my view that if the defendant has by the leaseauthorized Valentine Growers to utilize the land in themanner complained of by the plaintiff and if theutilization of the land in that manner is going to causepermanent damage to the plaintiffs investment, theplaintiff has a cause of action against the head lesseenow without waiting for the estate to fall in possessionof the defendant in future.

In any case, it is not clear as to who is dealing withdefendant’s land as Mr. Mike Maina is involved bothin the defendant and in Valentine Growers and seemsto wear two hats. If Valentine Grower feel that theyhave an interest to protect it as a firm, it has a right toapply to be joined as a defendant to protect thoseinterests.

For those reasons the preliminary objection has nomerit and is over ruled with costs to the plaintiff. Iorder that the application do proceed to hearing onmerits.

E.M.GITHINJIJUDGE8.5.97

Mr. Owino presentMr. Kigano presentMr. Owino: We wish to appeal against the rulingbecause you seem to have decided the issue of facts.There is a pending application for injunction. We needyour directions. We can exhaust the application forthe injunction and hear it next week after which theappeal can go on.

E.M.GITHINJI (JUDGE)Mr. Kigano: I agree with that cause –to deal withapplication for injunction and if it is against them, thenproceed to appeal on the whole matter.

E.M. GITHINJI (JUDGE)Mr. Kigano: I apply for leave to join Mike Maina as aparty under order 1 rule 10 CP Rules.Mr. Owino: We will be objecting to that.

E.M.GITHINJI (JUDGE)Order: The intended application to join Mike Mwangias a party to be made by a formal application.

E.M.GITHINJI (JUDGE)

Mr. Owino: The pending application for injunction canbe fixed for hearing on 9.6.97 together with theintended application to join Mike Maina.Mr. Kigano: It is all right. Extend interim orders.

Order: By consent hearing of the application forinjunction on 9.6.97 at 11 a.m. Interim orders extendedto 9.6.97. Ruling to be typed.

E.M. GITHINJIJUDGE.

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RULING

NIAZ MOHAMED JAN MOHAMED (hereinafterreferred to as NIAZ) has at all times material to thissuit been the Registered Proprietor of all that freeholdproperty measuring approximately 3.63 Acres knownas Plot No. 32 Section I Mainland North in Kisauni/Nyali area within Mombasa Municipality.

During the construction of the New Nyali Bridge in1979, it became necessary to construct a new accessroad to Kisauni and Nyali Estate. When that road wassurveyed it traversed Plot No. 32 as it must have, otherplots, and therefore the Land Acquisition Act had tobe invoked to acquire the areas traversed by that road.As respects Plot No. 32, it was considered that theroad would cover an area of approximately 0.37 of anAcre and therefore machinery was put in place toacquire that portion.

The Acquisition was carried out through theCommissioner of Lands who published Kenya GazetteNotices on 18.5. 1979. On 13.12.1979, he registeredagainst the Title a “Notice of taking possession andvesting of land in the Government” under Section 19(1)of the Land Acquisition Act and asked Niaz tosurrender the documents of Title to the Registrar ofTitles Mombasa for rectification. The Notice wascopied to amongst others, the Municipal Council ofMombasa. The Director of Surveys, the Chief Engineer(Roads) Ministry of Works with a caption that

“Construction of road will start withimmediate effect.”

And so it did and was completed in due course andhanded over by the contractors. It was then opened foruse by the public.

Niaz thereafter enjoyed a road frontage and direct

access to that road until November 1995 when it isalleged the Commissioner of Lands, with theconnivance, consent or knowledge of the MunicipalCouncil of Mombasa created a new leasehold Titlefrom a small portion which remained uncovered bythe tarmac road, measuring approximately 0.14 Acresand allocated this to NANDLAL JIVRA SHAH,VIMAL NANDLAL SHAH and MEHUL SHAH allTrading as JIVACO AGENCIES (hereinafter referredto as JIVACO). The Title issued was given LR No.9665 Sec.1 MN and Grant No. CR 28028. The 99-year tenure commenced on 1.11.95.

Niaz was piqued about this discovery. He saw not onlya deliberate attempt to interfere with his easementrights of access to the new road and its road reservebut also a callous attempt to unlawfully alienate publicland to private developers. The threats by the newallottees to commence development or alienate the plotto other persons despite protestations by Niazcompelled him to come to court.

He filed suit on 8.8.96 against the Commissioner ofLands (Commissioner) and JIVACO. He also joinedthe Mombasa Municipal Council (The Council) whichis the Local Authority within whose jurisdiction theKisauni/Nyali Road falls and holds the Road togetherwith the Road reserve thereto in trust for the Public,and must have known about the alienation of theportion of land. He prays for judgment and five ordersin that suit:

i) A declaration that the creation and grant ofallocation by the Commissioner and/or the Councilof Title No. LR No. 9665 Sec. 1 MN to Jivaco in1995 is null and void.

ii) A declaration that the lease of 99 years granted toJivaco by the Commissioner and/or the Councilof Title No. 9665 Sec.1 MN is null and void.

NIAZ MOHAMED JAN MOHAMED

VERSUS

COMMISSIONER OF LANDS, MUNICIPAL COUNCIL OF MOMBASA,NANDLAL JIVRAJ SHAH, VI MAL NANDLAL SHAH TIA JIVACO

AGENCIES, MEHUL N. SHAH

(H.C. Civil Suit No. 423 of 1996)

High Court of Kenya at Mombasa(Justice P.N. Waki .J.): October 9th 1996

72

iii) An order that Jivaco do deliver up the Title No.9665 to the Commissioner for cancellation.

iv) An order that the land comprised in Title No. 9665Sec.1 MN do remain a road or road reserve.

v) An injunction to permanently restrain thedefendants jointly and/or severally from sellingor developing the said parcel by themselves or theiragents or in any other manner from dealing withthe land No. 9665 Sec.1 MN.

Contemporaneously with the main suit, Niaz filed aChamber Summons under Order 39 rule 1.3 & 9 ofthe Civil Procedure Rules and Section 3A of the Actseeking a temporary order:

“That Jivaco by themselves or by their agentsor servants or any person whatsoever actingon their behalf be restrained from developing,erecting structure or structures, selling,assigning or transferring or in any othermanner whatsoever dealing in or with orinterfering, wasting or alienating plot No. LRNo. 9665 Sec.1 MN until the hearing and finaldetermination of this suit or further ordersfrom the court.”

This is the application that was argued before me on19.9.96 and 20.9.96 and was satisfied on the outsetthat the Commissioner was served with the plaint,summons to enter appearance, chamber summons andaffidavit but never bothered to respond thereto or attendcourt on the hearing date either personally or throughthe Attorney General. The Council was also servedand entered appearance and filed its defense. But itmade no response to the application by filing anygrounds of opposition or any affidavits in reply. TheirCounsel Mr. Iha attended court on the hearing dateand was given an opportunity to address the court onany aspect of the application despite the non-filing ofgrounds of opposition and/or replying affidavit.Counsel declined the opportunity however and statedthat he did not wish to make any submissions in respectof the application. He left the courtroom. That left Mr.Asige for Niaz and Mr. Gikandi for Jivaco to battle itout.As I perceive it. Mr. Asige’s case is two-pronged: thatNiaz has private rights to protect and intertwined withthese rights are also public rights, which ought to beprotected.

The private rights of Niaz arose because after theacquisition of the land and the construction of the road,Niaz became a frontager to that road and acquired

absolute easement rights over the new road. He has aright to remain on such frontager, which has its advantagesbecause the portion of his land was not acquired forany other purpose but for construction of a road. Heought to have direct access to the road through thisportion but he will not be able to do so since a Titlehas been created between him and the road and thereis no way of knowing what kind of construction ordevelopment will be put up there. This may well affectthe value of his property. Hence the need to protectthese rights the infringement of which will lead toirreparable loss and damage. Intertwined with theserights is a public right which Niaz as a member of thepublic and in his own right as a user of the road feelshe ought to protect. In Mr. Asige’s submission, it isclear that the portion now the subject matter of thesuit was acquired solely for construction of the newKisauni/Nyali access road. If the entire stretch ofacquired land was not utilized, then any remainingportions still comprised the said Road and its Road -reserve. He cited the Public Roads and Roads of AccessAct Cap 399 Section 2(c).

“Public Road means(a)..…(b)..…(c) all roads and thorough fares hereafterreserved for public use and also the StreetsAdoption Act Cap 406 Section 3( I ) where‘street’ means inter alia:“... a highway... road ... footway... passage orany lands reserved therefor, within the area ofLocal Authority, used or intended to be used asa means of access to two or more premises orareas of land in different occupation whetherthe public have a right of way over it or not."

On these two premises, submitted Mr. Asige, the areaacquired became a Public road or street Under theLocal Government Act Cap 265, such areas are underthe general control of the local Authority within whichthey are situated, in this case. The Mombasa MunicipalCouncil, Under Section 182( I) of the Act the Councilexercises trusteeship rights and has no right ofalienation in breach of that trust. It is the breach ofthis trust that is intended to be contested in the mainsuit. It will also be contended that the Commissionerof Lands was part of this larger scheme of alienatingroad reserves by abusing the provisions of the LandAcquisition Act by compulsorily acquiring land for aspecific purpose only to turn round and dish it out toindividuals. It will therefore be contended that due tothis abuse of the law the allocations made to Jivacoare a nullity abinitio and ought to be so declared bythe court. This abuse is even more glaring considering

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that the new plot created traverses the new tarmac roadand according to a survey map annexed to theapplication two of the beacons stand on the built-uptarmac road. It would mean that in exercise of theirnew rights Jivaco could build on top of the tarmacroad if they wanted to.

In Mr. Asige’s submission Niaz has fulfilled all thetests set out in the Giella Vs Cassman Brown caseincluding the balance of convenience even if it cameto considering the matter on that basis. This is becauseno development has commenced yet and it would bemore convenient to prevent its commencement thanto wait until the finalization of the case when it maybecome necessary to demolish any construction. Heinvited the court to follow the legal reasoning adoptedin NBI HCCC 688/96. BETH KALIA & Others -Vs-ROBERT MUTISO LELI (UR) where it was recentlyheld by my brother Mbito J., on the facts of that case,that the President through the Commissioner of Lands"could not lawfully alienate suit premises which hadbeen previously alienated and had only beensurrendered to the Commissioner to hold in trust forthe residents of the area."

Mr. Gikandi relied on the grounds of opposition filedon 29.8.96 and basically contended that the suit didnot establish any prima facie case, was frivolous,vexatious and an abuse of the court process the plaintiffcan be compensated in damages and that the balanceof convenience is not in favor of granting theinjunction. He also relied on the affidavit sworn byMehul Shah for Jivaco and submitted the Jivaco werebona fide purchasers or allottees of the propertywithout notice of any encumbrance. He furthersubmitted that after the compulsory Acquisition asprovided for under the Land Acquisition Act the landvested in the Government free from encumbrances.“Vesting” according to the definition provided byJudicial Dictionary, which Mr. Gikandi cited:

“Having a right to immediate or futurepossession and enjoyment.”

The property having vested in the Governmenttherefore ‘and there being no challenge to thecompulsory acquisition since 1979, there cannot beany challenge now because the land subsequently fellto be dealt with by the Government under theGovernment Lands Act. This means that after utilizingthe acquired portion of 0.36 Acres the remainingportion of 0.14 Acres became “unalienatedGovernment Land” and the Government could dealwith it in any way it wished under Section 3 of theAct. The remaining portion in Mr. Gikandi’s

submission was not a road or a road reserve as alleged.It has now become a Registered parcel of land underthe Registration of Titles Act Cap 281 which makes itunchallengeable save for fraud or misrepresentation.Jivaco was not part of this fraud or misrepresentationif any is found to exist.

In his further submission, the Public Roads and Roadsof Access Act and the Streets Adoption Act have noapplication. The Acts are merely for creating RoadBoards and providing how one can apply to have aroad or street registered or adopted. There is noevidence to show that the Council as a street or roadregistered the disputed portion and therefore there isno prima facie proof that it fell on a road reserve.

As for the issue of damages Mr. Gikandi says there isan averment in the Affidavit of his client that Niaz hadapproached Jivaco for sale of the land to him and hemust therefore have his own interest and not thePublic’s in filing this suit. That is why he delayed infiling the suit since he found out the new Registrationin June 1996 until September 1996 when the suit wasfiled. Niaz’s rights of access have also not beeninterfered with since there are other approaches to hisproperty. He cannot suffer irreparable loss.

On the allegation that Jivaco ‘s Title or part of it standson the tarmaced road. Mr. Gikandi submitted that itwas not for Jivaco to ascertain where the beacons were.If any mistakes were made in placing them then thesemay be explained as human errors. Jivaco does notintend to build on the road. Considering therefore thatJivaco have a Title and now wish to commencedevelopment, they should not be stopped from doingso. Finally Mr. Gikandi submitted that Niaz has noteven given an undertaking as to damages if theinjunction is ultimately found to have been wronglyissued.

On this, Mr. Asige submitted that it was for the court toconsider whether to require and if so the nature of anundertaking to be given in the event of an injunctionbeing granted and confirmed that his client was readyto adhere to any terms set by the court in that respect.

The parameters within which I must consider thisapplication are clearly set in the Giella Case citedabove. I must be satisfied that the applicant has a primafacie case with a probability of success and that hewould suffer irreparable injury which isuncompensable in damages; and if I am in doubt thenI have to consider the balance of convenience. Inconsidering the first test I must also bear in mind thatat this stage I have not heard any evidence on the case

74

and that I am relying on Affidavit evidence. The mattersof conclusive proof shall await evidence at the mainhearing.

I have considered the submissions made on both sidesand it seems to me that if it can be proved that thedisputed portion of land was part of land compulsorilyand specifically acquired for the purpose ofconstruction of a Road and still remains as a roadreserve then the applicant would be entitled to say thathis rights of access to the road through this portion arebeing interfered with.

There is no right of compulsory acquisition of land bythe Government for purposes other than those providedfor in the Constitution of Kenya under Section 75:

No property of any description shall be compulsorilytaken possession of and no interest in or right overproperty of any description shall be compulsorilyacquired except where the following conditions aresatisfied:

a) the taking of possession or acquisition isnecessary in the interests of defense publicsafety, public order, public morality, publichealth town and country planning or thedevelopment or utilization of property so as topromote the public benefit and

b) the necessity therefor is such as to affordreasonable justification for the causing ofhardship that may result to any person havingan interest in or right over the property,

That spirit is carried forward in the land AcquisitionAct itself in Section 6.

“6(I ) where the Minister is satisfied that anyland is required for the purpose of public bodyand that- a) the acquisition of the land is necessary in

the interests of defense, public safety, publicorder, public morality, public health, townand country planning, or the developmentor utilization of any property in such manneras to promote the public benefit; and

b) the necessity therefore is such as to affordreasonable justification for the causing ofany hardship that may result to any personinterested in the land and so certifies inwriting to the Commissioner he may inwriting direct the Commissioner to acquirethe land compulsorily under this part.”

If it were not so and taken to its logical conclusion, aloophole would be created for any Government whichdoes not mean well for its citizens to compulsorilyacquire whole sections of a city or town or otherdeveloped property on the pretext of public goodcompensate the owners of the property acquired withtaxpayers’ money and then turn round and dish outthose properties to favored citizens of its choice or theenemies of the state: Parliament could not haveintended such preposterous consequences,

I am not persuaded by the argument that uponcompulsory acquisition of land and the consequentvesting of that land in the Government, the landfaIls to be used by the Government in any manner itdesires, There is plainly no such Carte Blance intendedin the provisions of the law cited above. The land mustbe used subsequent to the acquisition for a lawfulpurpose and as I see it, the only lawful purpose is theone for which it was acquired.

I am persuaded that the land in issue was acquired fora specific purpose which is consonant with theConstitution and the Land Acquisition Act, namely forthe construction of a Public Road. It matters not thatthe entire portion acquired was not used for thatpurpose. Unutilized portions in my view would remainas road reserves. And if it was the case that it wasfound unnecessary after all to have acquired theportions for the expressed purpose, does equity notrequire that the portions be surrendered back to theperson or persons from whom the land wascompulsorily acquired? The law itself in Section 23of the Land Acquisition Act appears to imply suchequity although it relates to withdrawal of acquisitionbefore possession is taken. Perhaps it is a question thatmay be answered when the matter comes up for fullhearing.

I am persuaded by the argument that since theacquisition was done for the purpose of making aPublic Road, the road thus made remained a PublicRoad or street and vested in the local Authority, theMunicipal Council of Mombasa to hold in trust forthe public in accordance with the law. Needless to saythis included the portion usually utilized for thetarmaced road and the remaining portions which formpart of the road reserve.

Finally I am persuaded by the argument that as theland is trust land, neither the local Authoritynor the Government could alienate the landunder the Government lands Act.

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On the above premises, the plaintiff/applicant wasentitled to assume that the unutilized portion wouldremain a road reserve and he would continue to enjoyall the rights and privileges of a frontager to the roadand enjoy the resultant easement of direct access tothat road. I find on a prima facie basis that the plaintiffhad such right and ought to be protected until this caseis determined. It is no answer to the prayer sought thatthe applicant may be compensated in damages. Noamount of money can compensate the infringement ofsuch right or atone for transgressions against the law,if this turns out to have been the case. Theseconsiderations alone would entitle the applicant to thegrant of the orders sought.

But objections were raised on the grounds that theplaintiff has no locus standi to protect the public rightshe purports to in alleging that a public road wasunlawfully alienated. No authority was cited for thisproposition. But I suppose allusion was being made toSection 61 of the Civil Procedure Act where in casesof Public Nuisance, it is only the Attorney General ortwo or more persons having the consent in writing ofthe Attorney General who may institute a suit thoughno special damage has been caused, for a declarationand injunction or other suitable reliefs.

“A Public or common Nuisance is an act whichinterferes with the enjoyment of a right which allmembers of the community are entitled to, such as theright to fresh air, to travel on the highways etc. Theremedy for a public nuisance is by indictmentinformation or injunction at the suit of the AttorneyGeneral” - see Concise Law Dictionary -Osborn.

What if the Attorney General is the cause of thenuisance?

As stated in the case of HCCC 1/96 BABU OMAR& OTHERS -Vs- EDWARD MWARANIA &ANOTHER (U.R):

“There is nothing in the statutes relating to LocalAuthorities to exclude the courts ordinary jurisdictionto restrain Ultra Vires acts or nuisance or to preventbreaches of trust. No authority has been cited to me tothe contrary and I am not aware of one. The applicantsare members of the public. They reside and pay theirrates to the Mombasa Municipal Council. They wouldbe entitled to vote here; and they have a right to

question the propriety or otherwise of the dealings bythe Council of the Public land which the Council holdsin trust for the public. They may well be right that theCouncil is alienating a Public Road Reserve, contraryto the law...”

I would apply the same principles here in granting theorders sought even on this limb of the application.I am satisfied that the first two tests in Giella Vs.Cassman Brown case have been satisfied and I neednot therefore consider the balance of convenience. If Iwere to consider it, I would nevertheless hold in favorof the applicant. No evidence has been tendered orsubmission made that any development of the portionin dispute has commenced. It would obviate heavierlosses if the injunction was granted at this stage ratherthan waiting until the end of the case and afterconsiderable expense has been incurred to order ademolition. Such damage as may be suffered by theRespondents if the injunction ultimately turns out tohave been erroneous in law and fact can be sufficientlycovered by an order, which I now make, that theapplicant do provide and file within the next SEVENdays, an undertaking that he will bear such damagesas may be assessed by the court, consequent upon thegrant of this injunction.

Subject to this qualification the application is grantedwith costs.

Dated at Mombasa this 9th day of October 1996.

P.N. Waki .J.JUDGE9.10.96

9/ I 0/96

Coram: Waki, J.C/C - MutuaAsige for plaintiff/applicantGikandi for defendant/respondentRuling delivered, signed and dated in open court.

P.N. WAKI.JUDGE9.10.9

76

RULING

By this application filed on 19th August 1996, theplaintiffs seek orders restraining the defendant fromremoving , dislocating and/or distreslocating or in anyother way moving a rare and endangered animal called‘the Hirola’ from its natural habitant in Arwale to theTsavo National Park or any other place or destinationon the grounds inter alia that it is a gift to the peopleof the area and should be left there. The defendanthowever contends that the injunction should not begranted and/or should be lifted as, inter alia, theapplication was seeking to curtail the respondent fromcarrying out its express statutory mandate.

The principles on which the court acts in suchapplications are now well settled. According to the caseof Giella vs. Cassman Brown and Co. Ltd. [1973] EA358, in dealing with such applications first theapplicant should show prima facie case with alikelihood of success. Secondly it should be shownthat the applicant is likely to suffer an injury whichcannot be adequately compensated by damages if theinjunction is not granted. Finally, that if there is somedoubt, the court should act on balance of convenience.

On the first principle on which the court acts, it isobserved that according to common law and/orcustomary law of the inhabitants of this country, thoseentitled to the use of the land are also entitled to thefruits thereof which include the fauna and flora unlessthis has been negated by law. A perusal of theconstitution which is the supreme law of this countryonly shows that minerals and oils are excluded fromthe ownership of those entitled to use of any givenland. See Section 115(1) of the Constitution. A perusalof the wildlife Act as amended by act 16 of 1989 showsthat the defendant by virtue of s. 3A and in particular3A (D) (E) (F) when read together or separately hereby

entitle the respondent to conserve the wild animals intheir natural state. It does not entitle it to translocate them.It would therefore appear that the respondent wouldbe acting outside its powers if it were to move animalsor plants away from their natural habitant without theexpress consent of those entitled to the fruits of theearth on which the animals live. Consequently in thiscourt’s view as the respondent is trying to depletethrough translocation the applicants heritage of fruitsof the land of which they are entitled to through thecounty council trust they are entitled to maintain thissuit and have shown a prima facie case with alikelihood of success.

On injury and/or balance of convenience, I need notreally belabour the point. If the animals are removedto a new habitant which they are not used to, it is notknown if they would survive so as to be returnedto their natural habitant if the case is successful. Onthe other hand if they are conserved at their naturalhabitant until the suit is heard they would still beavailable for translocation to the proposed new habitantif it is found that the case is misconceived.

In view of the above findings, I am satisfied that theapplicants have made out a case for grant of aninjunction. I therefore hereby grant prayers 4 and 5 ofthe chamber summons filed herein on 19th August 1996in so far as they relate to translocation of the Hirolasfrom their natural habitant of Arwale nature reserveof Garissa district. The costs hereof shall be in thecause. Orders accordingly.

Dated at Nairobi this 29th day August, 1996.

G. P. MBITOJUDGE.

ABDIKADIR SHEIKH HASSAN & 4 OTHERS

VERSUS

KENYA WILDLIFE SERVICE

(Civil Case No. 2059 of 1996)

High Court of Kenya at Nairobi( Justice. G. P. Mbito):April 18th 1997

77

RULING

At the center of these proceedings are two parcels ofland originally known as Nairobi/block 90/229 situatedat Loresho within the city of Nairobi. Loresho estate isa private development originally comprising ofI.R.No.5952 and 1653. These two parcels of land weresub-divided in or about 1976, as shown in the sub-division scheme dated 30th January,1976 which wasapproved by the commissioner of lands on or about28th November 1977.

In the said sub-division scheme, several parcels of landwere reserved for public utility namely:

• A shopping center, a water reservoir, a policestation, a nursery school and a water tower. Forpurposes of these proceedings, only the parcelsreserved for a police station and a water reservoirare in issue.

• From the undisputed facts before me, by a registryindex map No.148/2 dated 16.12.1993. Thecommissioner of lands purported to cancel titleNo. Nairobi/block 90/575 to 580 inclusive. All thesaid six plots are in the name of the first defendantPashito Holdings.

By another Registry index Map No. 148/2 and 3 dated17/1/96, the Commissioner of Lands purported to canceltitle number Nairobi/Block 90/229 reserved for thewater reservoir and made out three sub-plots nowbearing Nos. Nairobi/block 90/586 inclusive. All thethree plots are in the name of the second defendantShital Bhandari.By dint of a plaint dated and filed on 11th December,1996, the plaintiffs have moved the court for three prayers as follows:

• A declaration that neither the commissioner oflands nor any other person has a right to alienatepublic lands or any part thereof to any person for

any use other than that which such public landsare reserved and except as provided for in therelevant laws and statutes;

• A declaration that the allocation to the defendantsor to any other person to whom the defendantshave respectively derived title to all those piecesof land known as Nairobi/block 575 to 580(inclusive) and Nairobi/block 90/584 to 586 is nullan void AB-INITIO; and

• A permanent injunction restraining the defendants,whether by themselves, their respective servantsand/or agents from taking possession of fencingand or in any other way howsoever developing orselling all these pieces or parcels of land knownas Nairobi/Block 90/575 to 580 (inclusive) andNairobi/Block 90/584 to 586 (inclusive).

The defendants are named as Pashito Holdings Limitedand Shital Bhandari.

Alongside the plaint, the named plaintiffs filed twoapplications by way of chamber summons. The first isunder Order I Rules 8 10(2) and 12 of the CivilProcedure Rules which sought leave to give notice ofthe institution of the suit to all parties interested in thesuit as prospective plaintiffs by way of publicadvertisement or in such other way that the court maydirect. The other application was under Order 39 Rules1 and 3 rules of the Civil Procedure Rules for order cabove cited.

The summary of the plaintiff’s case is contained inthe certificate of Urgency that was annexed to theapplication for an order of injunction. It reads asfollows:

i) The plaintiff’s case is that the defendants havebeen allocated the suit properties illegally andthey are in the process of fencing the same withthe view of developing the same.

PAUL NDERITU NDUNGU AND TWO OTHERS

VERSUS

PASHITO HOLDINGS LIMITED & SHITAL. BHANDARI

(H.C. Civil Case No. 3063 of 1996)

High Court of Kenya at Nairobi (Justice A. Mbogholi Msagha)

78

ii) The plaintiffs’ claim is that the suit properties arepublic utility land and that therefore any allocationthereof is null and void AB-INITIO.

iii) If the defendants develop the propertiespermanently, the basis of the plaintiffs case wouldbe destroyed. In that case, both the suit and theapplication would be rendered nugatory.

Leave to file a representative action was granted byAluoch J on 16th December 1996 and there are interiminjunction orders in place issued by this court on 18th

December 1996.

There is an affidavit in support of the application forinjunction sworn by one, Paul Nderitu Ndungu on 11th

December 1996 paragraphs 22, 28 and 30 of the saidaffidavit are instructive and I deem it necessary to setthem out in full herein below. They read as follows:

1. That I verily believe that the land reserved for thepolice station and the water reservoir is notgovernment land strictly speaking which thegovernment can allocate to individuals at will. Iverily believe the said land having been reservedfor specific purposes can only be utilized for thosepurposes.

2. That I verily believe that neither the commissionerof lands nor any other person has a right to alienatethe said reserved pieces of land or any part thereoffor any use other than that for which it has beenreserved and that therefore any such alienation ofpublic land is void AB INITIO.

3. That I am advised by council on record that if theactions of the commissioner of lands in alienatingparts of public land in this specific case are voidAB INITIO, the defendants cannot claim to havegood titles to the pieces of land given to themillegally and thereof unlawfully.

4. That I verily believe that the allocations of the saidpieces of land to the defendants or to any personor persons to whom the defendants mayrespectively have derived title is therefore null andvoid.

Both defendants have filed grounds of objection andreplying affidavits. The plaintiffs are said to have nolocus standi to institute the suit. There is no cause ofaction, they have not satisfied the principles laid downin the Giella case; no order can be made against a partywho is not a party to the proceedings and that there ismisjoinder of actions.

One Mandip Singh Amrit has sworn an affidavit in hiscapacity as a Director of the first defendant Company.He states that the first defendant is the legal owner ofNairobi/Block Nos 90/575 to 580 all-inclusive. He hasannexed copies of the relevant documents relied upon.He further avers that the first defendant intends todevelop residential houses to the tune of over sh.60million. He concludes by saying that if the injunctionis granted, the first defendant will suffer irreparableloss.

In this affidavit the second defendant states that hepurchased the three plots on or about 13thFebruary, 1996 from the original allottees; he annexedcopies of the transfers. Pursuant to the transfers, titleswere issued. He annexed copies thereof, his ownershiphas not been challenged either by the City Council orCommissioner of Lands. If the injunction is granted,he stands to suffer loss and damage as he intends toput up a development which will be for the benefit ofthe public.

I must at this stage commend all learned counselappearing in this matter for his or her very ablesubmissions. I have also gone through all the citedauthorities.

Up to this point it will be noted, I have not addressedthe relationship of the plaintiffs with the subject matter– the parcels of land in dispute. This is because theplaintiffs’ capacity to sue or locus standi has beenchallenged. The issue of the locus standi goes to theroot of any action and like what the Court of Appealhas said in relation to the jurisdiction of the court todeal with a matter. If I were to find that the plaintiffshave no locus standi to bring these proceedings, I shalllay down my tools and go no further. I shall now turnto that issue.

The learned Counsel for the plaintiffs citedAdministrative Law Vol. 1(1) and submitted that whatthe plaintiffs were required to show was sufficientinterest and that this they have.

The plaintiffs are the registered proprietors of all thosepieces of land known as L.R. Nos 209/8336/86, andNairobi/Block 90/214 and 209/8336/244 respectivelyon which they have developed residential houses inwhich they live.

Further to the foregoing, the plaintiffs have pleaded inparagraph 12 of the plaint that they together with theother residents of Loresho have with the approval andfull cooperation of the Commissioner of Policeresolved to build a full fledged police station on the

79

land reserved for such purpose that is Nairobi/Block90/307. The plaintiffs and the said other residents havecontributed money and put up some structures for apolice post which as at July 1996 was housing fourpolicemen. More money is being raised to constructmore structures to accommodate up to (12) policemen.It is also their averment that the Nairobi City Councilhas built a large under ground water reservoir to servethe residents of Nairobi on the plot reserved for suchpurpose. Significantly the defendants have not disputedthose averments.

The provisions of a police station and therefore securityand water reservoir can not be divorced from thepersonal welfare of the plaintiffs. In addition topersonal interest there is the wider public interest tobe taken into consideration. The submission that theAttorney General is the only competent authority toinstitute a suit on behalf of the public is with respect,restrictive and may lead to miscarriage of justice ifaccepted as such.

On my part, accept and subscribe to the propositionthat a party is only required to show sufficient interestto acquire the capacity to urge the court for particularorders. This, the plaintiff have and I find they have thelocus standi in this matter and their action is properlybefore the court.

It is true that land can be acquired by direct allocationor by way of purchase. In the instant case, the firstdefendant was a direct allottee of the six plots referredto earlier while the second defendant purchased thethree plots from Maywood Limited, Mitema Holdingslimited and Mova Construction Company limitedrespectively. All these three companies share the samepostal addresses that is P. O. Box 1771, Kisumu andthe purchase price of one million shillings for eachplot.

These are serious discrepancies in the transfersannexed to the affidavit of the second defendant. Theyare not in the prescribed form as provided for underthe R. I. A. Cap 300 laws of Kenya. Only one party hassigned the same, that signature has not been witnessedand two of the same transfers did not receive theconsent of the Commissioner of Lands. Nevertheless,certificate of lease were issued in respect of each plotbe that as it may, the real issue is whether or not thecommissioner of lands had the authority to alienatethe land of the first defendant and to the threecompanies who subsequently sold the plots to thesecond defendant.

The two parcels of land in issue were part of thesubdivision scheme which were said to have beensurrendered to the Commissioner of Lands for thepublic utility before the development plan could beapproved. The surrender of the said parcels does notvest unto the Commissioner of Lands the power orauthority to alienate the same to any party. A trust wasin the circumstances of the case created and thecommissioner of lands could not deal with the landwithout reference to the plaintiffs. A similar situationarose in High Court Civil Case No. 688 of 1996, BethKalia and others –Vs- Robert Mutiso Leli, in whichothe court bserved.

“As regards the Commissioner of Lands, it is clearthat he was to hold the land in trust for the adjacentowners who have in fact paid for it. He therefore wasunder a duty to deal with it with their approval and nototherwise. He therefore did not have the power toalienate the land to the respondent.”

That was a decision of the High Court with concurrentjurisdiction and is not binding on me. However withrespect I agree with that holding in its entirety.

In addition to the foregoing, the plaintiffs have annexedto the affidavit for injunction a letter addressed to thecommissioner of police by the commissioner of landsdated 23rd April 1993, which read as follows:

The commissioner of landsPolice HeadquartersP. O. Box 30083,NAIROBI.

LETTER OF RESERVATION FOR PLOT NO.BLOCK 90 307 FOR POLICE STATION ATLORESHO.

I am pleased to inform you that plot no. Nairobi Block90 307 at Loresho area measuring 2.575 hectares ishereby reserved to your department for constructionof the police station. The plot is surveyed and giventhe above number. Greatest care should be exercisedto ensure all the buildings or other works are containingwithin the boundaries. The plot is shown edged in redon the attached plan.

W.GachanjaCOMMISSIONER OF LANDS.

The said letter was copied to among others; TheDirector of Surveys, the Town Clerk, Nairobi and the

80

Director of Physical Planning Department. It is ironicthat the Commissioner of Lands did cancel the saidnumber on 16/12/93 by a registry index map no.148/2of even date. There is no dispute also that the plotreserved for a water reservoir was originally knownas Nairobi Block 90/229. So it must also have beensurveyed and designated for that particular purpose.

Under the Government Lands Act, Cap 280 laws ofKenya, the Commissioner of Lands can only makegrants or depositions of any estates, interests or rightsin over unalienated Government land see Sec. 3. Inthe instant case parcels among others had beenalienated and designated for particular purposes. It isnot open for the Commissioner of Lands to realienatethe same. So the alienation was void ab-initio. I havenoted the submission on misjoinder of parties.However my view is that in this particular case it isnot necessary to join the Commissioner of Lands as abasis of making such an order. In any case it was alsoopen to the defendants to join any party to theseproceedings.

It has been submitted that the second defendant is apurchaser for value without notice and as such he is adaring of equity. I know the law provides that he wasnot bound to investigate the titles before he purchasedthe plots. However over the last few years and theresent past dealings in land have become more andmore precarious. More than ever before it is incumbent

upon any party dealing in land to ascertain its legalstatus before committing himself. If the seconddefendant did not take such precautions before partingwith substantial sums of money, the loss may lie whereit has fallen. In the circumstances of this case the faceof equity will frown at the transaction.

Having said as much I find that the plaintiffs havepresented a prima facie case with a probability ofsuccess. Damages may not be adequate compensationin view of both personal and community interests atstake in this matter.

I am not in any doubt about my finding herein aboveand even if I was I would still find that the balance ofconvenience tilts in favor of the plaintiffs. If thedevelopments proposed by the defendants were to becarried out, the purpose for which the land wasreserved will be defeated. The subject matter has tobe preserved. In the end the plaintiffs’ injunctionhereby proceeds with costs.

Orders accordingly.Dated and delivered at Nairobi this 18th day of April,1997.

A. MBOGHOLI MSAGHAJUDGE

81

RULING

The plaintiffs sued the defendants and sought thesedeclarations:

• That the subdivision, sale and transfer of L.R. 209/1855/2 – L.R. 5727 is irregular and breachedspecial condition in the grant dated 1.8.1928. It isultra vires the powers of the first defendant whichis Nairobi City Council.

• That the issuance of certificates of the Title by theCommissioner of Lands is irregular and contraryto law.

• The revocation of subdivision of land Ref.209/1855 – I.R. 2562 together with revocation of salethereof.

• An injunction to restrain the 3rd defendant fromselling or carrying out any construction work onL.R. 209/1855/2. A chamber summons dated 17

th

January 1994 has been filed in court and seeks aninjunction against the third defendant to restrainit from constructing anything on the plot inquestion. It is supported by the affidavit of the firstplaintiff which swears that the plot is in danger ofbeing alienated. The plaintiff will be obstructedin execution of any decree that they may obtainagainst the defendants if construction work ispermitted to continue unabated.

In its grounds of opposition dated 17.1.1994, the thirddefendant denies that it is disposing off the plot andsays, an injunction will cause hardship to the thirddefendant because the approval of the building plansby the Nairobi City Council is valid only for a year.The third defendant’s title is guaranteed by the

provisions of the Registration of Titles Act Cap. 281under which the title has been issued. An injunction ifgranted will render the provisions of the Registrationof Title Act nugatory.

The third defendant also filed the application dated17

th January 1994 for an injunction against the

plaintiffs. The second defendant filed an affidavit inwhich it is deponed that the Nairobi City Councilapplied for the subdivision of the plot in question andthe approval was given in the normal way.

In their grounds of opposition the plaintiffs said thatthey do not intend to damage the plot in question saveby way of lawful litigation in courts of law. The thirddefendant alone had filed a defence. It denies breachof the 1928 special condition upon which the suit isbased. It denies a sale to it of the plot but claims alawful allocation thereof which conferred good title.In paragraph 16 of this defence it is pleaded:

“This third defendant contends that theplaintiffs herein have no locus standi to bringthe proceedings now before the court and shallat the appropriate time move the HonourableCourt to strike out this suit.”

There is also paragraph 19 which pleads:-

“The third defendant shall rely on theprovisions of section 23 of the Registration ofTitles Act Cap 20 which provides inter alia,that the certificate of Title issued by theRegistrar to the purchaser of land upon atransfer shall be taken by all courts asconclusive evidence that the person namedtherein as proprietor of the land is theindefeasible owner thereof … and the title tothat proprietor shall not be subject tochallenge.”

PROF. WANGARI MAATHAI, PIUS JOHN NJOGU & JOHN F. MAKANGA

VERSUS

CITY COUNCIL OF NAIROBI, COMMISSIONER OF LANDS & MARKETPLAZA LIMITED

(H.C. Civil Case No. 72 of 1994)

High Court of Kenya at Nairobi( justice Ole Keiwua): March 17th 1994

82

There is of course section 24 of the Registration ofTitles Act which says that the remedy of a personaggrieved by such registration as that of the 3rddefendant is in damages only.

As pleaded in paragraph 16 of the defence of the thirddefendant, the time to raise the issue of locus standi,came on 27.1.1994 when the point was taken by thethird defendant that the plaintiffs had no right to appearand be heard in this case and their suit be struck out.For this proposition of lack of standing Mr. Muiguarelied on the House of Lords decision in GOURRIETAND OTHRS VS. H.M. ATTORNEY GENERALAND UNION OF POSTS OFFICE ENGINEERINGUNION (sic) (1971) AC 435 at Pages 437 Letter C:

HELD: Allowing the appeals by the defendants anddismissing the plaintiff’s appeal:

That save and in so far as the Local Government Act1972, section 222 gave local authorities a limitedpower to do so, only the Attorney General could sueon behalf of the public for the purpose of preventingpublic wrongs and that a private individual could notdo so on behalf of the public, though he might be ableto do so if he would sustain injury as a result of apublic wrong, for the courts had no jurisdiction toentertain such claims by private individuals who hadnot suffered and would not suffer damage (post pp.481 A. 494 F.G.) page 481.

But in the present case, the transgression of those limitsinflicts no private wrong upon these plaintiffs andalthough the plaintiffs, in common with the rest of thepublic might be interested in larger view of the questionyet the constitution of the country has wisely entrustedthe privilege with a public officer, and has not allowedit to be usurped by private individuals.

“That it is the exclusive right of the Attorney Generalto represent the public interest even where individualsmight be interested in the larger view of the matter itis not technical, not procedural, not fictional. It isconstitutional. I agree with Lord Westbury L.C. that itis also wise.”

It was submitted on behalf of the third defendant thatthe present case should have been brought by way of arelator action if the Attorney General saw it fit to doso. The plaintiffs have not shown that they suffer anyprivate injury if the proposed multi storey car parkbuilding is built. The basis of the plaintiff’s action isthat they are rate payers in the city ofNairobi. The third defendant had submitted that these

elements of rate paying are unsupported because noamount of rate is indicated, when paid, in respect ofwhat property the plaintiffs are concerned with.

Even rate paying alone does not entitle the plaintiffsto sue unless they show that they stand to suffer injuryor damage over and above other rate payers if thebuilding is constructed. As pleaded in paragraph 19 ofthe 3rd defendants defence, section 23 of theRegistration of Titles act. Cap 281 require that acertificate offer shall be taken by all courts asconclusive evidence the indefeasible owner thereof/and the title to that proprietor shall not be subject tochallenge.

This is however subject to encumbrances, easements,restrictions and conditions, contained or endorsed onsuch certificate. There is the First of August 1928special condition to which the third defendant says ithas not been breached because the present plot L.R.209/1855/2 I.R. 57271 has always been used as aparking area.

In paragraphs 8 and 10 of the 3rd defendant’s defenceit is stated that the suit premises were not purchased bthe third defendant but allocated to it and madepayment of K. Shs. 2 million by way of stand premiumas opposed to any purchaser price. In paragraph 9 ofthis defence fraud on the part of the defendants isdenied in that the First defendant, Nairobi City Councilacted legally and within its powers when it applied forthe subdivision. It is said the third defendant is astranger to the plaintiff’s allegations that the plaintiffsare aggrieved by the said allocation, subdivision andtransfer to the third defendant of L.R. No. 209/1855/2. In that connection the third defendant contends thatthe plaintiffs have no locus standi to bring theseproceedings.

On the basis of lack of standing and the provision andthe provision of section 23 of the Registration of TitlesAct I was urged to hold that the plaintiffs had no rightto sue, no right to appear, no right to be heard in theseproceedings.

On the other hand Mr. Khaminwa for the plaintiffs,submitted in relation to the attack and lack of evidenceof details of rate paying, that they had intended to calloral evidence of this at the hearing of the applicationfor injunction and present preliminary point has comeprematurely and at the wrong time because the 3rddefendant must wait to give the plaintiffs theopportunity to show by oral evidence that the plaintiffshave a standing. Mr. Khaminwa thinks the provisionof section 23 cannot be looked at this stage when

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dealing with whether the plaintiffs have a right to speakagainst an owner of a title registered under theRegistration of Titles Act.

A number of authorities were cited by Mr. Khaminwa.

One of this is the INLAND REVENUECOMMISSIONERS VS. NATIONALFEDERATION OF SELF EMPLOYED [1985] AC617 Page 653.

Suffice it to refer to the judgment of Lord Parker C.J.,in REG. Vs. Thames Magistrates Court that "a causeof certiorari;" and to the words of Lord Wilberforce inGouriet Vs. Union of Post Office Workers [1978] AC435, 482 where he stated the modern position inrelation to the prerogative orders: “ These are oftenapplied for by individuals and the courts have allowedthem liberal access under a generous conception ofLocus standi. The one legal principle which is implicitin the case law and accurately reflected in the rule ofcourt, is tat in determining the sufficiency of anapplicant’s interest it is necessary to consider the matterto which the application relates. It is wrong in law, asI understand the cases, for the court to attempt anassessment of sufficiency of an applicant’s interestwithout regard to the matter of his complaint. If hefails to show, when he applies for leave, a prima faciecase, or reasonable grounds for believing that therehas been a failure of public duty, the court would be inerror if it granted leave. The limb represented by theneed for an applicant to show, when he seeks leave toapply, that he has such a case is an essential protectionagainst abuse by busy bodies, cranks, and othermischief makers. I do not see any further purposeserved by the requirement for leave.”

According to the plaintiff’s the matter of theircomplaint here is the subdivision, allocation andtransfer and registration of the suit premises in thename of the third defendant. The sufficiency of theplaintiffs’ interest must be looked a with regard to thekind of premises the suit land is. As already stated thatthe title issued to the 3rd defendant herein cannot be

challenged in the absence of matters set out in section23 of the Act. This is the subject matter of the plaintiff’scomplaint I n respect whereof the 3rd defendant hasrightly raised a preliminary point that the applicantshave no right to be defendant’s title. In my consideredview, there is no further investigation required toascertain what the subject of the plaintiff’s complaintis. It is there in their plaint, in their chamber summons.At this stage the plaintiffs must show, and they havefailed to show, that there has been any failure of anypublic duty in which they alone have a unique interestas opposed to that of the public generally.

I have been referred to a passage in Wade,Administrative Law which in itself cries for answer.In the Lord Denning book: “ The Judge and the Law”I was referred to a passage like that of the InlandRevenue Commissioner’s case which deals with :“Exceptions had been made, particularly inapplications for certiorari or prohibition, but by andlarge standing was narrowly construed”. The plaintiffsare not before the court on any matter of certiorari orprohibition but by way of an ordinary suit by plaintrestricted by the nature of the statute law in Kenyaand restricted by their own interest in the subject matterof complaint namely as a rate payers which they havenot been able to make out a case.

I am therefore satisfied that the plaintiffs have no locusstandi in this case and they should not be heard.Accordingly the plaintiff’s suit is struck out as urgedin the preliminary objection. The plaintiffs will payall the defendants costs of this suit.

Delivered this 17th day of March 1994In the presence of :Khaminwa for the Plaintiffs (absent)Kinyua for the 1st DefendantMiss Kimani for the 2nd DefendantMr. Muigua for the 3rd Defendant.

M. OLE KEIWUA.JUDGE.

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RULING

The Applicants are two Nairobi residents and ratepayers. They have instituted the present action againstthe 1st Respondent, the Nairobi City Council and the2nd Respondent, the erstwhile Chairman of the NairobiCity Commission inter alia, to restrain the 1st

Respondent from permitting the 2nd Respondent tocontinue to enjoy certain facilities and perquisiteswhich he had enjoyed when he had been the Chairmanof the Nairobi City Commission. These facilities andperquisites are the 1st Respondent’s house LR No.330/492 Korosho Road (it had been described in thepleadings as LR No.330/493 Korosho Road, but thiswas subsequently corrected to read LR 330/492Korosho Road), its office known as the Mayor’sParlour and telephones therein, and its Mercedes Benzmotor car registration number KAA 8075.

Upon the filing of the suit, the Applicants applied forand obtained ex-parte a temporary injunction whichdid not apply to the 1st Respondent’s Korosho Roadhouse because at that time the correction in itsdescription had not yet been made, but which did applyto all the other facilities and perquisites of the 1st

Respondent already described. At the beginning of thesubsequent, inter partes hearing of the relatedapplication, a preliminary objection was raised onbehalf of the 2nd Respondent that the Applicants hadno locus standi to bring the action they had brought.This same ground was among the grounds of objectionfiled on behalf of the 1st Defendant. I decided it wouldbe convenient and proper that this ground should beargued first for if it succeeded that would be the endof that matter.

The arguments put forward in support of the objectionwere that the Applicant had no locus standi since theyhad not shown that they had sufficient interest inseeking the relief they were seeking; that since whatthey claimed was a matter in the realm of a publicwrong, ex relatione, they required the permission of

the Attorney General to bring the action which theyhad not got; that the Applicants have improperlybrought the action in a representative capacity; andthat the Applicants are mere busy bodies who seek toabuse the process of the court by instituting the action.But in considering this matter of a mixed question oflaw and fact, I have to take into consideration itssurrounding circumstances. They are simply this:

• that the Applicants say among other things;

• that as rate payers, they object to the 1st Respondentcontinuing to extend its facilities and prerequisitesto the 2nd Respondent after he had ceased to be theChairman of the Nairobi City Commission and;

• that this amounted to a misuse of the funds of the1st Respondent and that as ratepayers, they hadsufficient interest to bring the action. I think thatit is now well settled that a ratepayer as opposedto a taxpayer has sufficient interest as such, tochallenge in court the action of a public body towhose expenses he contributes.

This was eloquently set forth in the following passagefrom the speech of Lord Diplock in the House of Lordsin RC v. National Federation of Self-employedand Small Business Ltd. (1982) AC 617 at 740 et seq:

“For my part I need only refer to Reg. v. GreaterLondon Council, Ex parte Blackburn (1976) I. WLR.550. In that case Mr. Blackburn who lived in Londonwith his wife who was a ratepayer applied successfullyfor an order of prohibition against the council to stopthem acting in breach of their statutory duty to preventthe exhibition or pornographic films within theiradministrative area. Mrs. Blackburn was also a partyto the application. Lord Denning M.R. and StephensonL.J. were of opinion that both Mr. and Mrs. Blackburnhad locus standi to make the application; Mr.Blackburn because he lived within the administrativearea of the council and had children who might be

MAINA KAMANDA & ANOTHER

VERSUS

NAIROBI CITY COUNCIL & ANOTHER

(Civil Case No. 6153 of 1992)

High Court of Kenya at Nairobi (Justice M.Akiwumi): December 8th 1992

85

harmed by seeing pornographic films and Mrs.Blackburn not only as a parent but also on theadditional ground that she was a ratepayer. Bridge L.J.relied only on Mrs. Blackburn’s status as a ratepayer-a class of persons to whom for historical reasons thecourt of King’s Bench afforded generous access tocontrol ultra vires activities of the public bodies towhose expenses they contributed. But now that localgovernment franchise is not limited to ratepayers, thisdistinction between the two applicants strikes me ascarrying technicality to the limits of absurdity havingregard to the subject matter of the application in theBlackburn case. I agree in substance with what LordDenning M.R. said at P.559 though in language moreeloquent than it did would be my normal style to use:

“I regard it as a matter of high constitutionalprinciple that if there is good ground forsupposing that a government department or apublic authority is transgressing the law, or isabout to transgress it, in a way which offendsor injures thousands of Her Majesty’s subjects,then anyone of those offended or injured candraw it to the attention of the courts of law andseek to have the law enforced and courts intheir discretion can grant whatever remedy isappropriate’, (The italics in this quotation aremy own).”

Lord Diplock concluded his speech with the followingpenultimate paragraph with which I respectfully alsoagree and adopt in my consideration of the matter nowbefore me:

“It would, in my view, be a grave lacuna inour system of public law if a pressure grouplike the federation, or even a single public-spirited taxpayer, were prevented byoutdated technical rules of locus standi frombringing the matter to the attention of thecourt to vindicate the rule of law and get theunlawful conduct stopped. The AttorneyGeneral although he occasionally applies forprerogative orders against public authoritiesthat do not form part of central governmentin practice never does so against governmentdepartments. It is not in my view a sufficientanswer to say that judicial review of theactions of officers or departments of centralgovernment is unnecessary because they areaccountable to Parliament for the way inwhich they carry out their functions. Theyare accountable to Parliament for what theydo so far as regards efficiency and policy,and of that Parliament is the only judge; they

are responsible to a court of justice for thelawfulness of what they do and of that thecourt is the only judge."

The matter that the Applicants have raised is not amisguided or trivial complaint of an administrativeerror; it is one that involves a serious allegation ofmisapplication of public funds by a local authority.

As stated in Constitutional and Administrative Law.ECS Wade and AW Bradley, (l0th Edn, 1985 pp660 -661):

“An injunction may be claimed against apublic authority or official to restrain unlawfulacts which are threatened or are beingthreatened, for example to restrain unlawfulinterference with private rights or to restrainultra vires action such as improper expenditureof local funds."

This brings me to the issue whether the present suitcan be instituted as a relator action without leave ofthe Attorney General. In the recent case of OgingaOdinga and 3 others v Zachariah Richard Chesoniand the Attorney General. Misc. Civil Application No,602 of 1992, the three Judge Constitutional Bench ofthe High Court when dealing with the question ofrelator actions had this to say:

“When it comes to the public interest wherea party suffers generally as any other thenrelator actions lie. These actions fall under sec. 61 and 62 of the Civil Procedure Act andthey are limited to public nuisance and publiccharity. The Attorney General is the principalaggrieved party but 2 or more private personshaving interest in the given action and withthe Attorney General’s written consent cansue.”

That a relator action was required in the specific actionconcerning a public charity as provided for by the CivilProcedure Act was reiterated in the case of WafkCommissioners v. Mohamed bin Umeya binAbdulmajid bin Mwijabu and Ali Mohamed Ali Bashir(1984) 2 KAR. Hancox JA as he then was had this tosay:

“One other final matter remains. TheRespondents did not initially obtain theAttorney General’s consent required underS.62 of the Civil Procedure Act. It was givenfor the institution of this suit by the thenAttorney General on 4th June 1977."

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But even if the present action can be said to be a relatoraction, and I do not think so, I will not prevent theApplicants from bringing to the notice of this courtthe improper conduct of the 1st Respondent. I havealready referred to the penultimate paragraph of LordDiplock speech in the National Federation case supra.Nearer home, Hancox JA as he then was stated in Njauv Nairobi City Council (1982-1988) I KAR 229 at 239that:

“Even though that became a relator action, thetenor of Lord Denning’s remarks and that ofLord Diplock in the National Federation caseshow that the tendency is not to prevent peoplebringing to the attention of the courts unlawfulconduct by public authorities with a view toredress or getting the unlawful conductstopped.”

As to the objection that the Applicants had followedthe wrong procedure in bringing a representative suitthat has only to be rejected. It is true that in the plaint and the affidavits in support of theinjunction application it is averred that the 2nd

Respondents’ use of the facilities and perquisites ofthe 1st Respondent would give him an unfair advantageover the Applicant and other persons who are like the2nd Respondent, aspirants in the forthcoming civicelections but this passing remark does not make thepresent suit a representative one. And though I do not

think that the political rivalry between the Applicantsand the 2nd Respondent gives the former any cause ofaction and locus standi, the Applicants as I have alreadystated, have as rate payers, sufficient interest inbringing to the attention of this court any allegedunlawful act being committed by the 1st Respondentand to seek its stoppage.

The issue of locus standi is not a matter to beconsidered in the abstract and apart from thesurrounding circumstances which I have alreadyalluded to, there are other relevant matters revealed inthe affidavits filed in support of and in opposition tothe injunction application. It seems to me that there ismore than meets the eye concerning the circumstancesunder which the 2nd Respondent because a tenant ofthe 1st Respondent. Secondly, how did house No. LR330/493 which had been repaired and lavishlyfurnished as the official residence of the Mayor of the1st Respondent pass into the hands of another person.

In the result and taking into account all the authoritiescited to me in this matter, I rule that the Applicantshave locus standi to bring the present suit

Dated and delivered this 8th day of December. 1992.

M. AKIWUMIJUDGE

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RULING

This was an unusual petition. In it’s content anddemands, it constitutes several petitions in one, whichrange from challenge to the validity of diverse laws tothe protection of the construction and legality. Thepetitioner, the Rev. Christopher Mtikila, is a humanrights campaigner and political activist and wasrepresented by learned counsel Mr. Dominic Mbaniwho was assisted by Mr. Richard Rweyongeza. Mr.Kipenka Msemembo Musa, a Senior State Attorney,represented the respondent Attorney General. I wishto commend them all for the industry and brilliancethat went into the preparation and presentation ofarguments.

The petition originally raised very diverse issues, manyof them rather political in flavor and substance, andthis prompted Mr. Musa to raise a litany of preliminaryobjections, which the court resolved in the early stagesof the proceeding. The objections were grounded inquestions of the petitioner’s locus standi, cause ofaction and justifiability of some of the issues. A number of matters were struck out and issueswere then framed for the survivors. In view of thecharacter of the petition, which had to be amendedseveral times, it is better to paraphrase these issuesrather than merely list them.

The first issue is a general one and is tied up with thesecond and fifth issues. It seeks to establish generallywhether the fundamental rights guaranteed in part III,chapter one of the constitution of the united republic,1977 are immutable. The inquiry is prompted by a setof Amendment Act,No. 4of 1992. The act amendsarticles 39,67 and 77 in a manner which appears toinfringe the right of participation in national publicaffairs which is guaranteed by Art .21(1);It also amendsArt 20 in a manner that appears to infringe the freedomof association which is guaranteed in sub-art ,(1) thereof. To put it differently, the problem posed in the firstissue is whether the amendments to the constitution

were validly made and, if not, whether they can bedeclared void pursuant to the provisions of Art.64 (5).

The second issue on the provisions of ss.8,9,10 and 15of the Political Parties Act,1992(No.5) which wasenacted pursuant to the amendment to Art 20.Theseprovisions are alleged to inhibit the formation ofpolitical parties and therefore to infringe the freedomof association. I am called upon to declare themunconstitutional and void. The fifth issues arises fromthe amendment to Articles 39,67,and 77 as well as 39of the Local Authorities (Elections) Act, 1979.Theseamendments render it impossible for independentcandidates to contest for Presidential, Parliamentaryor local council elections and again, I am called upon to remedy the situation.

In the third issue, the petition takes on ss.5 (2),13,25and 37-47 of the Newspapers Act ,1976 (No.3). Section5(2) empowers the Minister responsible for the mattersrelating to newspapers to exclude any newspaper fromthe operation of any of the provisions relating to theregistration of newspapers.

Section 13 empowers the Minister to require anypublisher of a newspaper to execute and register a bondin the office of the Registrar of Newspapers. Section25 empowers the Minister to order cessation ofpublication of any newspaper. Sections 37-47 areconcerned with defamation and the punishment forlibel. Finally, the petition takes on para 12 (1) ofGovernment Notice No.166 of 1977 which empowersthe Registrar to refuse registration of newspapers. It iscontended that all these provisions are arbitrary andliable to abuse and constitute infringement of thefreedom of expression which is guaranteed under Art18 (1).

The fourth issue turns on the freedom of peacefulassembly and public expression and questions theconstitutionality of S.40,41,42 and 43 of the PoliceForce Ordinance Cap 322, as well as ss.11 (1) and (2)

REV. CHISTOPHER MTIKILA

VERSUS

THE ATTORNEY GENERAL

(H.C. Civil Case No. 5 of 1993)

High Court of Tanzania at Dodoma (Justice A. J. Lugakingira):

88

of the Political Parties Act. These provisions make itpossible for permits to be obtained in order to holdmeetings or organize processions and also provide forpolice duties in relation thereto. In the sixth and thefinal issue a declaration is sought on theconstitutionality of the appointment of Zanzibaris tonon-Union posts on the Mainland.

In my ruling on the preliminary objections, I reservedfor consideration at this stage the questions of LocusStandi; cause of action and justiciability and I willproceed to do so before considering the matters setout above.

Arguing the question of locus standi, no doubt with amind to the common law orthodox position, Mr. Mussasubmitted that the petitioner had to show a sufficientinterest in the outcome. He considered this to beimplied in Art .30 (3) of the constitution. In his view,the petitioner had to demonstrate a greater personalinterest than that of the general public, and cited theNigerian case of Thomas & Ors. v .Olufosoye (1986)LRC(const) 639 in support of his argument.

In that case it was held by the Court of Appeal thatunder ss.6(6) (b) of the 1979 Nigerian Constitution itwas necessary for the appellants to establish a sufficientinterest in maintaining the action and this should be apersonal interest over and above that of the generalpublic. Ademola, J., C.A said ,at p.650:

"It is also the law as laid down in the Adesanya Casethat, to entitle a person to invoke judicial power, hemust show that either his personal interest willimmediately be adversely affected by the action or thathe has sustained or is in immediate danger of sustainingan injury to himself and which interest or injury isover and above that of the general public."

Basing on this, Mussa went on to assert that the crucialfactor was the petitioner himself and not the contentsof the petition. Furthermore, he contended thatArt.26(2) of the Constitution did not in itself conferlocus standi and appeared to read the provision as if itwere not independent in itself.

In response Mr. Mbezi argued that standing wascertainly conferred on the petitioner by Art 26(2) andthat personal interest (or injury) did not have to bedisclosed in that context .He maintained that the allegedillegality of the laws was sufficient to justify thepetition under that provision. Mr. Mbezi further statedthat the petitioner acquired locus standi under Art 10(3)as well and referred to the dispersal of his meeting

under the provisions of the Police Force Ordinance,the refusal to register his party under the provisions ofthe Political Parties Act and the banning of Michapoand Cheka newspapers (his alleged mouth pieces) assufficiently demonstrating the petitioner’s interestwithin the contemplation of Art 30(3). Mr. Mbezifurther argued that in view of the provisions of Art 64,(5) the Court could be moved into action by anypetitioner.

I have given due consideration to the contendingarguments and feel called upon to deal with the subjectat some length. The status of the litigant inadministrative law is a crucial factor and it has assumedan added dimension in constitutional law in the wakeof written constitutions. In the English common law,the litigant’s locus standi was the handmaid of judicialreview of administrative actions. Whenever a privateindividual challenged to the decision of anadministrative body the question always arose whetherthat individual had sufficient interest in the decisionto justify the court’s intervention. Hence, it is statedin Wade and Phillips, Constitutional Law (1965:672);

“ In administrative law, it is necessary for acomplaint to have a peculiar grievance whichis not suffered in common with the rest of thepublic.”

The turning point in England came with the proceduralreform in judicial review vide s.31 of the SupremeCourt Act, 1983,which was to lead in the course of the1980s to the recognition of the existence of public lawas a distinct sphere from private law. In other parts ofthe Commonwealth, notably India and Canada, asimilar but imperceptible development came tomanifest itself in the doctrine of public interestlitigation. Traditionally, common law confines standingto litigate in protection of public rights to the AttorneyGeneral and this was reaffirmed by the House of Lordsin Guriet v. Union of Post Office Workers (1978) AC435, and the Attorney General’s discretion in such casesmay be exercised at the instance of an individual.But before even the enactment of the Supreme CourtAct, a liberal view of standing was already taking shapeand a generous approach to the issue was alreadyconsidered desirable. This is illustrated by these wordsof Lord Diplock in IRC vs National Federation ofSelf –Employed and Small Business Ltd. (1981) 2All E.R. 93,107:

It would, in my view, be a grave lacuna in our systemof public law if a pressure group, like the federationor even a single spirited taxpayer, were prevented by

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out-dated technical rules of locus standi from bringingthe matter to the attention of the Court to vindicate therule of law and get the unlawful conduct stopped.

Yet more contemporary developments indicate that inEngland, judges are beginning to acknowledge thepossible appearance of apparent “busy-bodies” wherepublic interest litigation is concerned. The lateRaymond Blackburn, a lawyer and former Membersof Parliament, litigated several public interest questionsin which he evidently had no greater interest than theother members of the public. In R ..v. MetropolitanPolice Commissioner/ exparte Blackburn,(1968) 2 QB118, he challenged police policy is not enforcing thegaming or obscenity laws, and in Blackburn v. AttorneyGeneral.(1971) 2 All E.R .1380, he challengedGovernment policy in joining the EuropeansCommunity.

The developments in Canada have been no lessbreathtaking and we there find more generous standingrules applied than else where in the olderCommonwealth. The existence of a written constitutionand the incorporation of a charter of basic rights havefacilitated this. The taxpayer is the central figure inthe Canadian approach. In Thorson V. AttorneyGeneral of Canada (1915) 1 SCR138, a taxpayer wasallowed by a majority to challenge the constitutionalityof the Official language act.

Laskin, J., speaking for the majority, contemplated“whether a question of constitutionality should beimmunised from judicial review by denying standingto anyone to challenge the impugned statute.” It wasobserved that standing in constitutional cases was amatter for the exercise of judicial discretion. In thecase of Nova Scotia Board of Censors v . McNeil,(1976) 2 SRC 265, the Supreme Court again grantedstanding to taxpayer to challenge the validity of aprovincial Act regulating film and theatre shows. Thisposition is also illustrated in Minister of Justice v.Borowski (1981)2 SCR 673 where the majority grantedstanding to a taxpayer impugning federal legislationallowing abortion, and ruled:

“…to establish status as a plaintiff in a suitseeking a declaration that the legislation isinvalid, if there is a serious issue of invalidity,a person need only to show that he is affectedby it directly or that he has a genuine interestas a citizen in the validity of the legislation andthat there is no other and effective manner inwhich the issue may be brought before theCourt.

The Canadian Supreme Court has in fact extended theliberalizing effect of these judgments beyondconstitutional cases.

Finally, it is important to revisit the Nigerian position.What was said in Thomas was not merely an expressionof the seeming inflexibility of S. 6(6) (b) of the 1979Nigerian Constitution but it was also a product of thecolonial heritage. Soon after the attainment ofindependence, Nigerian Courts found themselveshaving to determine when and what circumstances willlitigants be accorded standing to challenge theconstitutionality of a statute or to ask for a judicialreview.

In Olawayin Vs. G. of Northern Nigeria (1961), AllN.L.R. 269, the plaintiff had challenged theconstitutionality of a law which prohibited childrenfrom engaging in political activities. The trial courtdismissed the claim on ground that no right of plaintiffwas alleged to have been infringed and that it wouldbe contrary to public principle to make the declarationasked for in vacuo. He appealed to the Federal SupremeCourt that dismissed the appeal on the same ground ofabsence of sufficient interest. In a classic restatementof the Orthodox Common Law approach ,Unsworth,F.J. said, p. 274:

“There was no suggestion that the appellant wasin imminent danger of coming into conflict withthe law or that there has been any real or directinterference with his normal business oractivities… the appellant failed to show that hehad a sufficient interest to sustain a claim…tohold that there was an interest here wouldamount to saying that a private individualobtains an interest by the mere enactment of lawwhich may in future come in conflict.”

Curiously, the Nigerian courts remained stuck in thatposition even when the 1979 Constitution suggested away out with the clause-

"Any person who alleges that any of theprovisions of this chapter has been, or is likelyto be contravened in state in relation to himmay apply to a High Court in that State forredress."

It was necessary to treat the subject to this length inorder to demonstrate that Mr. Mussa’s appreciation oflocus standi in the context of constitutional litigationno longer holds goods. The notion of personal interest,personal injury or sufficient interest over and above

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the interest of the general public has more to do withprivate law as distinct from public law. In matters ofpublic interest litigation this court will not denystanding to the genuine and bona fide litigant evenwhere he has no personal interest in the matter. Thisposition also accords with the decision in BanazirBhutta v. Federation of Pakistan. PLD 1988 S. 46,where it was held by the Supreme Court that thetraditional rule of locus standi can be dispensed withand procedure available in public litigation can bemade use of if the petition is brought to the court by aperson acting bona fide.

The relevance of public interest litigation in Tanzaniacannot be over-emphasized. Having regard to oursocio-economic conditions, this development promisesmore hope to our people than any other strategycurrently in place.

First of all illiteracy is still rampant. We were recentlytold that Tanzania is second in Africa in wiping outilliteracy but that is statistical juggling which is notreflected on the ground. If we were that literate it wouldhave been unnecessary for Iianang District Council topass bye-laws for compulsory adult education whichwere recently published as Government Notice No.191of 1994. By reason of this illiteracy a greater part ofthe population is unaware of their rights, let alone howthe same can be realized.

Secondly, Tanzanians are massively poor. Our rankingin the world on the basis of per capital income haspersistently been the source of embarrassment. Publicinterest litigation is a sophisticated mechanism, whichrequires professional handling. By reason of limitedresources the vast majority of our people cannot affordto engage lawyers even where they were aware of theinfringement of their rights and the perversion of theConstitution.

Other factors could be listed but perhaps the mostpainful of all is that over the years since independenceTanzanians have developed a culture of apathy andsilence. This, in large measure, is a product ofinstitutionalized mono-party politics which in itsrepressive dimension, like detention without trial,supped up initiative and guts. The people foundcontentment in being receivers without being seekers.Our leaders very well recognise this, and with theemergence of transparency in governance they havenot hesitated to affirm it. When the National Assemblywas debating the Hon. J. S. Warioba’s private motionon the desirability of a referendum before somefeatures of the Constitution were tampered with, theHon. Sukwa, after two interruptions by his colleagues,

continued and said (Parliamentary Debates, 26.8.94):

“ Mheshimiwa Spika, nilisema kwamba tatizola nehi yetu sio wanachi. Bazima tukubali hilikwa kweli, tatizo ni sisi viongozi. Kama sisiviongozi tutakubali ana,wananchi hawanamatatizo. Mimi nina hakika MheshimiwaSpika. Kama viongozi wa Tanzania wote; wapande zote mbili wa Zanzibar na wa TanzaniaBara, tutakubali kusema kesho Serikali moja,basi itakuwa kesho,na wananohi watafanyimaandamano kuunga mkono. Maanawananchi wetu hawana tatizo. Kwa ninitunawapelekea hili tatizo? Nasema tatizo nisisi viongozi.”

Given all these and other circumstances, if there shouldspring up a public-spirited individual who seeks theCourt’s intervention against legislation or actions thatpervert the constitution, the Court, as guardian andtrustee of the Constitution and what it stands for, isunder an obligation to rise up to the occasion and granthim standing. The present petitioner is such anindividual.

These principles find expression in our Constitution.It is apparent from the scheme of Part III, Chapter Oneof the Constitution that every person in Tanzania isvested with a double capacity: the capacity as anindividual and the capacity as a member of thecommunity. In his former capacity he enjoys all thebasic rights set out in Art.12 to Art.24. In the lattercapacity he is bounden to discharge duties towards thecommunity as indicated in Art. 25 to Art.28.Thisscheme reflects the modern trend in constitutionalismwhich recognises the pre-eminence of the communityin the formulation of the constitution. It is recognizedthat the rights are correlative with functions: we havethem that we may make our contribution to the socialend.

Our Constitution goes further to emphasize the twocapacities by equipping the individual with a doublestanding to sue. In the first place he is vested withstanding by Art.30 (3) which states:

"(3). Where any person alleges that provision ofthis part of this Chapter or any law involving abasic right or duty has been, is being or is likelyto be contravened in relation to him in any partof the United Republic, he may, withoutprejudice to any other or remedy lawfullyavailable to him in respect of the same matter,institute proceedings for the relief in the HighCourt."

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This provision, in my view, caters for both personaland public interest litigation for at times the two mayprove inseparable. A person who sues because hedesires to be an independent parliamentary candidatewhere the system does not so allow necessarilyshoulders the burden for the public .It is also importantto note that under this provision action lies where aperson’s right “has been, or is likely to be contravened.”These are plain and clear words which admit of nocontroversy. Standing is therefore available under theConstitution even where contravention of a basic rightis reasonably apprehended.

The case of Thomas in as much as it was decided indeference to the much criticized decision in Adesanyahas no relevance in the context of our Constitution. Inthe upshot it is not correct to say, as Mr. Mussasuggested that the petitioner has no locus standibecause he cannot show that the rights have alreadybeen infringed. In my view he is within the purview ofArt.30 (3), if there is in existence a law the operationof which is likely to contravene his basic rights.

Standing is additionally conferred by Art.26 (2), andthis states:

(2) Every person is entitled; subject to theprocedure provided for by the law, to instituteproceedings for the protection of theConstitution and legality.

Mr. Mussa suggested that this provision has to be readwith Art.30 (3) and cannot be used in lieu of the latter.With respect, I cannot agree.It is a cardinal rule ofstatutory and constitutional interpretation that everyprovision stands independent of the other and has aspecial function to perform unless the contraryintention appears. There is nothing in Art.26 (2) orelsewhere to link it to Art.30 (3) .The only linkage is to Art. 30 (4) and this is one of the procedure, trather than substance.

Clause (4) empowers Parliament to make provisionfor the procedure relating to institution of proceedingsunder the article. It has not done so to date but thatdoes not mean that the court is hamstrung. In D.P.P. v.Daudi Pete, Criminal Appeal No.28 of 1990(unreported), the Court of Appeal stated that “…untilthe Parliament legislates under sub-article (4) theenforcement of the Basic Rights, Freedoms and Dutiesmay be effected under the procedure and practice thatis available in the High Court in the exercise of itsoriginal jurisdiction, depending on the nature of theremedy sought.” I hold Art .26 (2) to be an independentand additional source of standing which a litigant

depending on the nature of his claim can invoke.

Under this provision, too, and having regard to theobjective thereof the protection of the Constitution andlegality, a proceeding may be instituted to challengeeither the validity of a law which appears to beinconsistent with the Constitution or the legality ofdecision or action that appears contrary to theConstitution or the law of the land. Personal interestis not an ingredient in this provision; it is tailored forthe community and falls under the sub-title “Duties tothe Society”. It occurs to me, therefore, that Art.26 (2)enacts into our Constitution the doctrine of publicinterest litigation. It is then not in logic or foreignprecedent that we have to go for this doctrine; it isalready with us in our own Constitution.

I hasten to emphasize, however, that standing will begranted on the basis of public interest litigation wherethe petition is bona fide and evidently for the publicgood and where the Court can provide an effectiveremedy. This point is under scored in Peoples Unionfor Democratic Rights v. Minister of Home Affairs,AIR 1985 Delhi 268, where it was stated that publicinterest litigation meant nothing more than what itstated, namely; it is a litigation in the interest of thepublic. It is not the type of litigation which is meant tosatisfy the curiosity of the people, but it is a litigationwhich is instituted with a desire that the court wouldbe able to give effective relief to the whole or a sectionof the society. It is emphasized in the case that thecourt should be in a position to give effective andcomplete relief. If no effective or complete relief canbe granted, the court should not entertain publiclitigation.

I gave serious consideration to the matters raised inthis petition and the prayers connected therewith andI was persuaded that in quite a number of areas thepublic interest overwhelmed what appeared to be aprivate factor. I therefore allowed arguments to proceedon the issues reviewed above. But in the light of thosearguments and what is stated in this paragraph, it maybe necessary to reconsider the position of one issue atappropriate stage later. Meanwhile I will turn to disposeof the question of cause of action.

Cause of action is not a problem in this petition as Mr.Mussa seemed to suggest, but I respectfully disagree,that in order for the cause of action to arise an eventinjurious to the rights of the petitioner must have takenplace. In my view, where the issue is whether a law isunconstitutional the court looks at the law itself butnot at how it works. The following passage fromChitaley & Rio, The Constitution of India (1970: 686),

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citing Prahalad Jen v. State. AIR 1950 Orissa 157, isto the point:

“In order to determine whether a particular lawis repugnant or inconsistent with theFundamental Rights it is the provisions of theAct that must be looked at and not the mannerin which the power under the provision isactually exercised. Inconsistency orrepugnancy does not depend upon the exerciseof the power by virtue of the Act but on thenature of the provisions themselves.”

I agree and may not wish to add anything more. In thispetition the dispute is over the validity of various lawsand this, in my view, constitutes the necessary causeof the action. A situation could certainly arise wherethe cause of action would depend upon actual exerciseof power. Such a situation is exemplified in this petitionwhere the constitutionality of the appointment ofZanzibaris to non-union positions on the Mainland isquestioned.

In that context it is the appointments themselves thatconstitutes the cause of action, but that has to do withthe validity of the action rather than law. There nowremains the question of justifiability of the claims butsince that has more to do with the first of the issues, Iwill now turn to consider them.

The first issue seeks to determine the immutability ofbasic rights enacted in the Constitution. This turns onthe power of the Parliament to amend the provisionsproviding for these rights. Specifically, what is at issueare the amendments to Art. 20 and Art. 39 of theConstitution vide the Eighth ConstitutionalAmendment Act, 1992. In its original form Art. 20reads as follows:

20- (1) Subject to the laws of the land, every person isentitled to freedom of peaceful assembly, associationand public expression, that is to say the right toassemble freely and peaceably, to associate with otherpersons and, in particular to form or belong toorganizations or associations formed for the purposesof protecting or furthering his or any other interests.

(2) Subject to the relevant laws of the Land, a personshall not be compelled to belong to any association.In its amendment form, clause (1) remains unaffected,hence the rights and freedoms spelt out therein remainas before. Our interest in this petition centers on thefreedom of association, which, under the present multi-party system, includes the formation of the politicalparties. Clause (2) was also unaffected by the

amendment save that it now became clause (4). Inbetween there are new clauses (2) and (3), which it isnecessary to set out in full. (The translation fromKiswahili is partly my own and partly adapted).

(2) Without prejudice to the subsection, no political partyshall qualify for registration if by its Constitution andpolicy- it aims to advocate or further the interests ofany religious belief or group; any tribal, ethnic or racialgroup; only a specific area within any part of the UnitedRepublic; it advocates the breaking up of the Unionconstituting the United Republic; it accepts or advocatesthe use of force or violence as a means of attaining itspolitical objectives, its advocates or aims to carry onits political activities exclusively in one part of theUnited Republic; or it does not allow periodic anddemocratic elections of its leadership.

(3) Parliament may enact legislation prescribingconditions which will ensure compliance by politicalparties with the provisions of sub-section (2) in relationto the people’s freedom and right of association andassembly.

Pursuant to clause (3), Parliament enacted the PoliticalParties Act, 1992 providing for the registration ofpolitical parties and other matters. Clause (2) abovewas lifted in its entirety and re-enacted as S.9 (2) ofthe Act. In addition, S.8 of the Act provided for a two-stage registration- provisional and full registration.Provisional registration is done upon fulfillment of theconditions prescribed in S.9: full registration is effectedafter fulfillment of the conditions in S.10 that reads:

10 – No political party shall be qualified to be fullyregistered unless:-

it has been provisionally registered; it hasobtained not less than two hundred memberswho are qualified to be registered as voters forthe purpose of parliamentary elections fromeach of at least ten Regions of the UnitedRepublic out of which at least two Regions arein Tanzania, Zanzibar being one Region eachfrom Zanzibar and Pemba; and it has submittedthe names of the national leadership of the partyand such leadership draws its members fromboth Tanzania Zanzibar and TanzaniaMainland; it has submitted to the Registrar thelocation of its head office within the UnitedRepublic and a postal address to which noticesand other communications may be sent.

It is contended by the petitioner that ss.8, 9 and 10 ofthe Political Parties Act are unconstitutional in the sense

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that they impose serious conditions on the formationof political parties and thereby inhibiting enjoymentof the freedom of association addressed in Arts 20 (1).It is further contended that Art.20 (2) and (3) are for the same reason, unconstitutional. I amtherefore invited to strike out Art. 20 (2) and (3) of theconstitution as well as S. 8, 9,10 and 15 of the PoliticalParties Act.

On the other hand, Art 39 previously provided asfollows: -

39. “No person shall be eligible for election tothe office of the President of the UnitedRepublic unless he has attained the age of fortyyears: and is otherwise qualified for electionas a Member of the National Assembly or the(Zanzibar) House of Representatives.”

As amended by the Eighth Constitutional AmendmentAct, the above paragraphs are retained but re-numbered(b) and (d) respectively.

There is an added new paragraph (a) and (c), whichstates (my translation):

• is a citizen of the United Republic by birth;

• is a member of and sponsored by a political party.

The requirement for membership of and sponsorshipby a political party is extended to candidacy for theNational Assembly in Art. 67 and Art. 77 as well as forthe local councils in s.39 of the Local Authorities(Elections) Act, 1979 as amended by the LocalAuthorities (Elections) (Amendment) Act, 1992 (No.7), s. 9.The petitioner contends that the requirementfor membership of and sponsorship by a political partyabridges the right to participate in national publicaffairs granted by Art .21(1) which states:-

21-(1) Every citizen of the United Republic is entitledto take part in the government of the country eitherdirectly or through freely chosen representatives, inaccordance with procedure provided by or under law.

I am therefore called upon to strike out para (b) in Art.39 and wherever else the requirement for membershipof and sponsorship by a political party occurs.

As stated earlier the issue of immutability turns onParliament’s power to amend the Constitution. Inassessing this power, it is appropriate to recall, in thefirst place, that fundamental rights are not gifts fromthe State. They are in a person by reason of his birth

and are therefore to the State and law. In our times onemethod of judging the character of a government is tolook at the extent to which it recognises and protectshuman rights. The raison d’être for any government isits ability to secure the welfare of the governed. Itsclaim to the allegiance of the governed has to be interms of what that allegiance is to serve. Allegiancehas to be correlative with rights. Modern constitutionslike our own have enacted fundamental rights in theirprovisions. This does not mean that the rights arethereby created; rather it is evidence of theirrecognition and the intention that they should beenforceable in a court of law. It can therefore be arguedthat the very decision to translate fundamental rightsinto a written code is by itself a restraint upon thepowers of Parliament to act arbitrarily. As aptlyobserved by the Chief Justice Nassim Hassan Shah inMuhammad Nawaz Sharif vs. President, Pakistan,PLD 1993 SC 473,557:

"Fundamental Rights in essence are restraints on thearbitrary exercise of power by the State in relation toany activity that an individual can engage. AlthoughConstitutional guarantees are often couched inpermissive terminology, in essence they imposelimitations on the power of State to restrict suchactivities. Moreover, Basic or Fundamental Rights ofIndividuals that presently stand formally incorporatedin the modern constitutional documents derive theirlineage from and are traceable to the ancient NaturalLaw."

Our Constitution confers on Parliament very widepowers of amendment but these powers are by nomeans unlimited. These powers are to be found in Art.98 (1) and (2) and it is necessary to set out the relevantparts.

98- (1) Parliament may enact legislation altering anyprovision of this Constitution, or of any law includereferences to the amendment or modification of thoseprovisions, suspension or repeal and replacement ofthe provisions or the re-enactment or modification inthe application of those provisions.

These powers are evidently wide. It has to be accepted,in the first place, that Parliament has power to amendeven those provisions providing for basic human rights.Secondly, that power is not confined to a small sphere.

It extends to modification of those provisions,suspension or repeal and replacement of them, re-enactment or modification in the application thereof.Drastic as some of these terms may sound, I still donot believe that they authorize abrogation from the

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Constitution of these rights. The provision of Art. 98should be read in the light of the claw back clauses inArt .30 (2) and 31. The former reads as follows:

It is hereby declared that no provision contained inthis Part of this Constitution, which stipulates the Basichuman rights, freedom and duties, shall be construedas invalidating any existing law or prohibiting theenactment of any law or the doing of any lawful actunder such law, making provision for-

• ensuring that the rights and freedoms of others orthe public interest are not prejudiced by the misuseof the individual rights and freedoms;

• ensuring the interests of defense, public safetypublic order, public health, rural and urbandevelopment planning, the development andutilization of mineral resources or the developmentor utilization of any other property in such amanner as to promote the benefit;

• ensuring the execution of the judgment or orderof a court given or made in any civil or criminalproceeding;

• the protection of the reputation rights and freedomsof others or the private lives of persons involvedin any court proceedings, prohibiting the disclosureof confidential information, or the safeguardingof the dignity, authority and independence of thecourts;

• imposing restrictions, supervision and control overthe establishment, management and operation ofsocieties and private companies in the country; or

• enabling any other thing to be done whichpromotes enhances or protects the national interestgenerally.

Art.31, on other hand, empowers Parliament,notwithstanding the provisions of art.30 (2), to legislatefor measures derogating from the provisions of Art.14(Right to live) and Art.15 (Right to personal freedom)during periods of emergency, or in ordinary times inrelation to individuals who are believed to beconducting themselves in a manner that endangers orcompromises national security. We may also refer toArt.97 (1), which provides in part:

"subject to the other provisions of thisConstitution, the legislative power of Parliamentshall be exercised through the NationalAssembly…"

Reading all these provisions together, it occurs to methat Parliament’s power in relation to the amendmentof the provisions under Part 111 of chapter One of theConstitution can only be exercised within the limitsof Art.30 (2) and Art. 31. Hence, even if it is asuspension, or repeal and replacement it must bejustifiable within the scope of the two provisions. Ihave therefore come to a conclusion, and Mr. Mussaconcedes, that Parliament’s powers of amendment arenot unlimited. It should be recognized, on the otherhand, that society can never be static. New times bringwith them new needs and aspirations. Society’sperception of basic human rights is therefore bound tochange according to changed circumstances, and thatmakes it imperative for Parliament to have power toalter every provision of the Constitution. What remainsimmutable, therefore, is the ethic of human rights butnot the letter by which they are expressed.

We turn to consider whether the amendmentscomplained of were not within the constitution limits,beginning with Art. 20 (2) and (3). The former doesnot abrogate or abridge beyond the purview of Art.30(2), and the right of association guaranteed under Art.20

(1). It merely lays down conditions a political party has to fulfill before registration, which are within the perimeters of Art. 30(2). The conditions are clearly aimed at the promotionand enhancement of the public safety, public order andnational cohesion. There cannot be any such thing asabsolute or uncontrolled liberty, or freedom without restraint, for that would lead to anarchy and disorder.

Indeed, in a country like ours, nothing could be moresuicidal than to license parties based on tribe, race orreligion. The problem with Art. 20 (3) is even lessapparent. Its enabling provision giving Parliamentpower to enact a law for the registration of politicalparties and for ensuring compliance with Art. 20 (2)and (3) were validly enacted. There remains, however,the provisions of the Political Parties which fall forcomment under the second issue. Next is Art. 39 andallied articles and provisions relating to presidential,parliamentary and local councils candidates.

Once again am unfortunate in having said that theseamendments were within the powers of Parliament.They do not abrogate but merely modify the applicationof Art .21 (1) by providing that participation in nationalpublic affairs shall through political parties. As seenearlier, modification in application is covered underArt.98 (2). I also think that the amendments are withinthe ambit of Art. (2) If the public order be taken as

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having supplied the inspiration. These amendmentswere, therefore, validly made.

It should be understood, however, that I am at thisjuncture talking of validity in strict legal terms; theamendments are otherwise not free from difficulties,and these are dealt with under the fifth issue.

The Court’s power to declare a law void is founded inArt. 64 (5).

Having held that the impugned constitutionalamendments were validly made, I do not have toconsider whether such amendments are “law” withinthe meaning of the article. I have read in this connectionthe interesting arguments in the cases of Golaknath v.State of Punjab (1967) 2 SCR 762 and Kesavanandav. State of Kerala (1973). Supp. SCR, but in view ofthe decision I have reached, am unable to takeadvantage of them.

The second issue questions the constitutionality of S.8,9,10, and 15 of the Political Parties Act. Much efforthad gone into this matter when I was obliged to admitthat the trial of this issue should have been stayed.Last year the petitioner filed at the Dar es Salaamregistry of this Court an application for orders ofcertiorari and mandamus. That was MiscellaneousCivil Cause No.67 of 1993, the applicants beinghimself and the Democratic Party and the respondentsbeing the Attorney General and the Registrar of Political Parties. The grounds for the application werethat the Registrar was biased in refusing to registerthe Democratic Party and the Political Parties Act(apparently the whole of it) was unconstitutional andvoid. He was praying for orders to quash the Registrar’sdecision and to direct him to reconsider the DemocraticParty’s application according to law. The applicationwas heard and subsequently dismissed by Maina. J.on 14th December 1993. Two days later, the petitionerlodged a notice of appeal. There is now pending beforethe Court of Appeal a civil appeal No. 24 of 1994, in which the first ground of appeal states:

“The learned judge erred in law in failing tohold that Section 8 and 10 of the Politicalparties Act, 1992, Act. No.5 of 1992 areviolations of article 13 (6) of the Constitutionof the United Republic of Tanzania andtherefore null and void on the ground that theydo not provide for fair hearing before theSecond respondent’s decision to refuse fullregistration of a Political Party.”

The memorandum concludes: -

It is prepared to ask the Court for the followingorders: an order striking out sections 8,10 and16 of the Political Parties Act, 1992.

In the present petition I am confronted with the sameprayer with slight variation, namely, to strike out S.8,9,10 and 15 of the same Act. In other words a suit inwhich the matter in issue is substantially in issue inanother suit between the same parties is pending inanother court in the country. It seems also that the Dares Salaam suit was instituted earlier because the recordof this petition shows that its trial was being put off toawait the outcome of the former. In these proceedingswe do not have a prescribed procedure but we haveinvariably invoked and been guided by the provisionsof the Civil Procedure Code, 1966. Section 8 of thecode provides thus: -

S. 8 - No court shall proceed with the trial ofany suit in which the matter in issue is alsodirectly or substantially in issue in apreviously instituted suit between the sameparties, or between parties under whom theyor any of them claim litigating under the sametitle where such suit is pending in the sameor any other court in Tanganyika havingjurisdiction to grant the relief claimed.

This provision is in parimateria with S.10 of the IndianCode of Civil Procedure, 1998. MULLA observes inrelation to the latter that the object is to prevent courtsof concurrent jurisdiction from simultaneously tryingtwo parallel suits in respect of the same matter in issue.It goes on to claim, citing a 1919 observe authority,that the section enacts merely a rule of procedure and adecree passed in contravention for it is not a nullityand cannot be disregarded in execution proceedings. Ithink however that this might be true where thesubsequent suit is decided without knowledge of theexistence of the previous suit.

It is the pendency of the previous instituted suit thatconstitutes a bar to the trial of the subsequent suit.The word “suit” has been held to includes “appeal”:see Raj Spinning Mills V. A. G King Ltd. (1954) A.Punj. 113. The “ matter in the issue” in the provisionhas also been constructed as having reference to theentire subject matter in controversy between the partiesand not merely one or more of the several issues: seeHariram v. Hazi Mohammed (1954) Allahabad 141.The same position was stated by the court of appeal of

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eastern Africa in Jadva Karson V. Hariram SinghBhogal (1953) 20 EACA 74 when they wereconsidering S.6 of Kenya civil procedure ordinancewhich is again in parimateria with our S.8. The casebefore me is of course a novelty. Like the eye of abutterfly. It is a composite of several petitions wrappedup into one. When considering the expression “matterin issue” one has to consider each issue independentlyfor they have no relationship. There is not one subjectmatter in controversy between the parties but several.In the circumstances of this case “matter in issue”must be taken to be matter in issue in each of the sixissues framed and I am satisfied that the same matteris in issue in the appeal pending before the court ofAppeal.

In Jinnat Bibi v. Howeah Jute Mills Co. Ltd. Air 1932Cal. 751, it was held that the provisions of S.10 of theIndian code were mandatory and left no discretion tothe courts in respect of the stay of suits whencircumstances are such as to invoke the operation ofthat section. It was further held that one test of theapplication of the [sic] to a particular case whether onthe final decision being reached in the previous suitsuch decision would operate as res judicata in thesubsequent suit. Indian decisions are certainly notbinding on this court but they deserve the greatestrespect where they expound a provision which waspreviously our own and which remains in pari materiawith our own.

The Indian code of civil procedure was in applicationin Tanganyika until 1996 and s.10 thereof is in parimateria with our S.8. it is therefore not only in courtesybut also in common sense that I consider my selfentitled to rely on these decisions. In so doing I holdthat the provisions of d.8 of our code are mandatoryand provide no room for discretion incircumstances where it is invokable in the instant case.Moreover there is no doubt that the final decision inthe pending appeal would operate as res judicata inthe instant petition. The question is not whether I amin a position to decide the matter ahead of the court ofappeal: courts of law are not resources. The point isthat I am bound to stop in my tracks and let the previoussuit proceed to finality because the decision on thematter in issue would operate as res judicata on thesame matter in the suit before me. I will therefore staythe [decision on] the second issue until the outcomeof Civil Appeal No.24 of 1994.

In the third issue the court is invited to pronounce onthe constitutionality of S.5 (2), 13, 25, 37-47 of theNewspapers Act. 1976 and Para. 12 of G. No. 166 of1977. I have two observations to make in this connection.

It must be realized that the constitutionality of aprovision or statute is not found in what could happenin its operation but in what it actually provides for.Where a provision is reasonable and valid, the merepossibility of its being abused in actual operation willnot make it invalid. Collector of customs (Madras) v.N. S. Chetty, AIR 1962 SC 316.) It seems to me withrespect that much of what was said against the aboveprovisions reflected generally on what could happenin their operation rather than on what they actually providedfor as generally referred to in the decision of the Courtof Appeal in Kukutia ale pumbum v. AttorneyGeneral, Civil Appeal No.32 of 1992, but I think thatcase covers a different situation the situation where aperson was deprived of his right to sue,unless he was permitted to do so by the defendant.The provisions complained of however areadministrative and implementation and theirconstitutionality can only be challenged if they werenot with in the power of the legislature to enact them.

Secondly and most importantly, I have unfortunatelycome to doubt the petitioners standing in this issue.As stated before, our constitution confers a doublecapacity on every person – his personal and hiscommunity capacities. Now, in what capacity did thepetitioner take up these provisions? It can not be in hispersonal capacity because there is nothing in theprovisions or any of them which is shown to havecontravened, is contravening or is likely to contravenehis right to receive or impart information. Thecontravention has to be read in the provisionsthemselves. It transpires that the petitioner’s complaintis in fact founded on the banning of the “Michapo”and “cheka” newspapers vide Government Notice No.8 of 1993. That is improper. The use or misuse of thepowers granted by S.25, the relevant provision in thatconnection, has nothing to do with the validity of thatprovision as such. What would be relevant is whetherparliament had no power to grant those powers.

As for the misfortunes of “Michapo” and “Cheka”the doors were open for the option of judicial reviewbut it seems better options were found. Can thisissue, in the alternative, fall under public interest,in other words, the general public of interest litigation?I don’t think so either. As seen before, public interestlitigation is litigation in the interest of the public. Inother words the general public or a section thereof mustbe seen to be aggrieved by the state of the law to bedesirous of redress. There could probably be provisionsin the Newspaper Act one could consider oppressive,unreasonable and even unconstitutional, but that isbeside the point: the point is that there is no evidenceof public agitation against the law, and by “public” I

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do not mean merely newspaper editors but theTanzanian public generally. Ironically whatever thislaw may be identified with appear to be overshadowedby the unprecedented upsurge of private newspapersin recent years. As stated in Sanjeev CokeManufacturing Co. V. Bhamet Coal Ltd. Air 1983SC239, courts are not authorized to make disembodiedpronouncements on serious and clouded issuesbetween parties properly ranged on either side and acrossing of the swords. It is inexpedient for the courtto delve into problems, which do not arise and expressopinion thereon, in the premises I decline to pronounceon the third issue.

The fourth issue brings us to the provisions of thepolice force ordinance and the Political Parties Acttouching on assemblies and processions. Under S.40of the former a permit is necessary to organize anassembly or procession in public place. The permit isgrantable by the District Commissioner. Similarly,political parties require a permit from the districtcommissioner to hold public meetings pursuant to theprovisions of S.11 (1) of the political parties Act section41 of the ordinance empowers a police officer abovethe rank of inspector or any magistrate to stop orprevent any assembly or procession of the holding orcontinuance of it “is imminently likely to cause abreach of the peace or to prejudice the public safety…” the police officer or magistrate may therefore giveorders, including orders for the dispersal of theAssembly or procession, S.42 defines what constitutesunlawful assembly or procession, namely an assemblyor procession not authorized by permit, where one isrequired, or one held in contravention of the conditionsthereof or in disregard of orders by the police ormagistrate. S.43 is the penal provision for disobedienceetc, These provisions i.e. 41, 42 and 43 are importedinto the Political Parties Act vide S.11 (2) thereof. Itwas argued for the petitioner that these provisions areinconsistent with the freedom of peaceful assemblyand public expression that is guaranteed under Art20(1). Mr. Mussa, on the other hand thought they wereall supervisory in character intended to ensure peaceand good order to the end that the rights and freedomsmay be better enjoyed.

A better approach to these provisions is to distinguishtheir functions. First of all there is the requirement fora permit grantable by the district commissioner andthis falls under S.40 of the ordinance and (1) of theAct. Next there is control of the meetings andprocessions and this falls under 41 the exercise of thatpower being vested in the police and magistracy.Finally we have the criminal law provisions in S.42and in considering the question of constitutionality

these distinctions have to be kept in mind: I draw thesedistinctions also because not all meetings orprocessions require a permit yet all attract educational,entertainment and sporting assemblies do not requirea permit: and by virtue [of] G. N. No.237 of 1962assemblies convened by municipal or town councilswith in the areas of their jurisdiction do not requirepermits either: but all these events attract police andmagisterial supervision. Let us now look at thecharacter of three divisions in relation to theconstitution.

Section 40(2) provides in part: of (2) any person whois desirous of convening, collecting, forming, ororganizing any assembly or procession in any publicplace shall first make application for a permit in thatbehalf to the District Commissioner and if the DistrictCommissioner is satisfied having regard to all thecircumstances .. that the assembly or procession is notlikely to cause a breach of the peace.. he shall subjectto the provisions of sub section (3) issue a permit.

Section 11(1) of the Political Parties Act is to the sameeffect although it does not expressly set out all that isin the above provision. These provisions may then beconstructed with the provisions of Art, 20(1) whichstates in part:-

subject to the laws of the land. Every personis entitled to freedom of peaceful assemblyassociation and public expression that is tosay the right to assemble freely andpeacefully.

The constitution is the basic or paramount law of theland and cannot be over ridden by any other law. Whereas in the above provision, the enjoyment of aconstitutional right is subject to the laws of the land.The necessary implication is that those laws must belawful laws. A law that seeks to make the exercise ofthose rights subject to the permission of another personcan not be consistent with the express provisions ofthe constitution for it makes the exercise illusory. Inthis class are S.40 of the police force ordinance and S.11(1) of the political parties Act. Both provisions hijackthe right to peaceful assembly and processionsguaranteed under the constitution and place it underthe personal disposition of the District Commissioner.It is a right that cannot be enjoyed unless the DistrictCommissioner permits. That is precisely the positionthat was encountered in ole pumbun where the rightto sue the Government could not be exercised withthe permission of the Government. The court of Appealwas prompted to say:-

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…a law which seeks to limit or derogate fromthe basic right of the individual grounds ofpublic interest will be saved by Article 30(2)of the constitution only if it satisfies essentialrequirements; first such a law should be lawfulin the sense that it is not arbitrary, it shouldsafeguard against arbitrary decision andprovide effective control against the abuse bythose in authority when using the law. Secondly,the limitation imposed by such law must notbe more than is reasonably necessary to achievethe legitimate object. This is what is also knownas the principle of proportionality if the lawdoes not meet these requirements, such law isnot saved by Article 30(2) of the constitution, andis null and void. Section 40 does not meet theserequirements. It is the absolute discretion ofthe District Commissioner to determine thecircumstances conducive to the organization ofan assembly or procession: there is no adequateor any safeguards against arbitrary exercise ofthat discretion and there is no mechanism forchallenging his decisions, except probably byway of judicial review which is tortuous andunbeneficial for the purpose of assembly andprocessions. I have easily come to theconclusion that the requirement for a permitinfringes the freedom of peaceful assembly andprocession and is therefore unconstitutional. It is not irrelevant to add, that in theTanzanian context, this freedom is rendered more illusory by the stark truth that the powerto grant permits is vested in cadres of the rulingparty.

Coming to S.41, I am of the view that the provisiondoes not operate to take away the right to holdassemblies. It only empowers the police and themagistracy to step in for the preservation of peace andorder. The provision is that saved by Art.31(2) (b), itbeing in furtherance of the state's normal functions ofensuring public safety and public order and isreasonably justifiable in a democratic society. Asrightly remarked by Mr. Mussa, the enjoyment of basichuman rights presupposes the existence of law andorder. A provision like S.41 is therefore a necessaryconcomitant to the realization of these rights. Moreoverthere is inherent in the provision a safeguard againstarbitrary use. It comes into play when the holding ofan assembly is imminently likely to cause a breach ofthe peace, public safety, public order or to beused for any unlawful purpose, and therefore meetswhat is termed the “clear and present danger” test. InMuhammad Nawaz Sharif cited earlier, Saleem Artar,J. said at pp 832-833:

Every restriction must pass the test ofreasonableness and overriding public interest.Restriction can be imposed and freedom maybe curtailed provided it is justified by the“clear and present danger” test enunciatedin Saia v. New York (1948) 334 US. 558 thatthe substantive evil must be extremely seriousand the degree of imminence extremely high.

Section 41 in my view is conditioned on clear andpresent danger where the substantive evil is extremelyserious and the degree of eminence extremely high. Asituation befitting the application of the provision canbe found in the Guyanese case of C. R. Ramson v.Lloyd Barker and the Attorney General (1983) 9 CLB12 that arose from the dispersal of a political meetingby the police. The plaintiff, an attorney at law wasstanding near his motor car by the road side discussingwith a colleague the methods used by police to dispersethe crowd. The police came up held the plaintiff byhis arm and asked him what he was doing there, andwas told “that is my business.” Other policemen cameup and surrounded the plaintiff , who was then jabbedseveral times in the ribs with a baton by anotherpoliceman who ordered him into the car. The plaintiffand his colleague then got into the car unwillingly anddrove away. The plaintiff later brought action alleginginter alia, an infringement of his right to freedom ofassembly, expression and movement. It was held bythe court of appeal that there was directhindrance of these constitutional freedoms.

These factors aside, it is equally apparent that thepetitioner admits the legitimate role of the police atassemblies and processions although somehow he doesnot realize that this role is specially authorized by S.41.Para 19 (h) of the petition, which states, in part:-

The court should also declare that a citizen has rightto convene a peaceful assembly or public rally and theright to make a peaceful demonstration without apermit from any body except that he should just informthe police before doing so.

I would not wish to believe that by this prayer it isintended that the police should attend assemblies andprocessions to applaud the actors and fold their armsin the face of an imminent breakdown in law and order.I am satisfied that S.41 is a valid provision.

Finally S.42 and 43, the former defines an unlawfulassembly and the latter punishes the same. Art 30(2)(a) and (b) of the Constitution empowers the legislatureto enact legislation for ensuring that the rights andfreedoms of others or the public interest are not

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prejudiced by the misuse of individual rights andfreedoms and for ensuring public safety and publicorder. This power in my view includes the power toprescribe penalties for criminal breaches. In otherwords, the penalties are necessarily concomitant to theeffective exercise of police and magisterial powersunder the other provisions valid as well.

At this stage, I will proceed to show the significance ofthe distinction I have been making. I have held thatthe requirement for a permit is unconstitutional butnot the police, magisterial and penal role. The crucialquestion now is whether these aspects can be severed.Severance is provided for under Art. 6(5) which statesthat any other law inconsistent with the provisions ofthe Constitution ...shall to the extent of theinconsistency be void.” It is therefore established thatwhere the valid portion is severed from the rest, thevalid portion will be maintained if it is sufficient tocarry out the purpose of the act. Delivering thejudgment of the privy council in A.G. of Alberta Vs.A.G. of Canada (1946) AC, 503 6, Viscount Simon said:

The real question is whether what remains isso inextricably bound up with the part declaredinvalid that what remains cannot independentlysurvive or as it has sometimes been put whetheron a fair review of the whole matter it can beassumed that the legislature would haveenacted what services without enacting the partthat is ultra vires at all.

I am in no doubt whatsoever that the permit aspectcan be expunged and expelled from the law with outprejudicing the rest. This is illustrated by the fact thatthe supervisory aspects already operate independentlywhere a permit is not required. It is evident thereforethat the legislature could have enacted the supervisoryaspects without enacting the permit aspect. Havingheld and I repeat, that the requirement for a permit isunconstitutional and void, I direct the provisions of S.40of the police force ordinance and S.11(1) (a) of thepolitical parties act and all provisions relating theretoand connected therewith shall hence force be read asif all reference to a permit were removed. It followsthat from this moment, it shall be lawful for any personto convene and address an assembly in any public placewithout first having to obtain a permit from the districtcommissioner. Until the legislature makes appropriatearrangements for this purpose, it shall be sufficientfor a notice of such assembly to be lodged with thepolice being delivered a copy to the districtcommissioner for his information.

In reaching this decision, I am aware of the decisioncited to me in Christopher Mtikila and Ors. V. R.Criminal Appeal No. 90 of 1992, the present petitionerand others were charged before the district court ofDodoma with three counts, the 1st of which allegedrefusing to desist from convening a meeting after beingwarned not to do so by police officers contrary tosections 41and 42 of the police force ordinance, Cap.322. They were convicted and fined 500/= each. Theyappealed to this court and it was contended inter aliathat S.41 was unconstitutional. Mwalusanya. J. agreedand said “I construe section 41 of the police forceordinance to be void. From now onwards, this sectionis deleted from the statute book. I am given tounderstand that an appeal has been lodged against thatdecision.

The fact that an appeal is pending naturally restrainsme in my comments on that decision. Yet I can notavoid to show why I find that decision difficultto go by. The learned judge did not merely hold S.41to be unconstitutional; he went further and held theentire trial to be a nullity. He said between pp.23 and25 of his judgment:

In my judgment I find the trial magistrate to haveaccess to the documents they required for their defensewas a fundamental defect which is not curable. Theerror is so fundamental that it has rendered the wholetrial a nullity.

This is significant indeed. It is established practice thatwhere a matter can be disposed of without recourse tothe Constitution, the constitution should not beinvolved at all. The court will pronounce on theconstitutionality of a statute only when it is necessaryfor the decision of the case to do so: Wahid MunwarKhan v. State AIR 1956 Hyd .22. In that case, a passagefrom Coday’s Treatise on Constitutional Limitationswas also cited in these terms.

In any case where a constitutional question is raised,though it might be legitimately presented by the record,yet if the record presents some other clear ground, thecourt may rest its judgment on that ground alone, ifthe other questions are immaterial, having regard tothe view taken by the court.

The Supreme Court of Zimbabwe expressed the sameview in Minister of Home Affairs v. Bickle & Ors(1985) LRC (Constitution) 755 where Georges. C.J.said (at p. 750):

“Courts will not normally consider a constitutionalquestion unless the existence of a remedy depends upon

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it; if a remedy is available to an applicant under someother legislative provision or on some other basis,whether legal to factual, a court will usually declineto determine whether there has been, in addition,a breach of the Declaration of Rights.”

And here at home, the Court of Appeal had this to sayin Attorney General Vs. W.K. Butambala, CriminalAppeal No. 37 of 1991(unreported):

“We need hardly say that our Constitution is a seriousand solemn document. We think that invoking it andknocking down laws or portions of them should bereserved for appropriate and really serious occasions.”

The court continued:

"...it is not desirable to reach a situation wherewe have “ambulance courts” which go roundlooking for situations where we can invalidatestatutes."

It is evident that the appeal under reference could havebeen disposed of on the ground that the trial was anullity without going into the constitutionality of S.41.It is indeed curious that a trial which was adjudged anullity could still provide the basis for striking downS.41. On these grounds and others, I was unable tobenefit from the decision of my learned brother.

The fifth issue takes us back to the amendments to theConstitution and elsewhere which make membershipof and sponsorship by a political party mandatory fora person to contest presidential, parliamentary or localauthority elections. I hold that the amendments wereconstitutionally valid but I reserved my position ontheir practical implication until this stage. It is essentialfor the purpose of the present exercise, and for cases ofreference, to set out side by the provisions of Art. 21(1). Art. 20 (4) and Art. 39 (c), the last mentionedbeing representative of allied amendments elsewhere.Art .21 (1) reads as follows:

“Every citizen of the United Republic isentitled to take part in the governance of thecountry, either directly or through freelychosen representative, in accordance withprocedures provided by or under the law.”

Art 20 (4) states (my translation):

(4) ‘Without prejudice to the relevant laws, no personshall be compelled to belong to any party ororganization, or for any political party to be refused

registration by reason only of its ideology orphilosophy.’

And Art. 39 (c) states (my translation):39. ‘No person shall be eligible for election to the officeof the President of the United Republic unless he- (a) ….(b) …. (c) Is a member of and sponsored by a political party.’

As generally understood, the citizen’s right toparticipate in the government of his country impliesthree considerations:

• the right to the franchise, meaning the right to electhis representatives;

• the right to represent, meaning the right to beelected to law making bodies; and

• the right to be chosen to a political office.

These three rights are, in my view, epitomized in theprovisions of Art. 21 (1), subject, of course, to thequalifications which expediency may dictate for theexercise of these rights, e.g. literacy and age. But whileaccepting the relevance of such qualifications, it has tobe admitted in the first place that the concept of basichuman rights has utilitarian aspect to it: to whom arethese rights to be useful? Harold Laski (A Grammarof politics, 1967:92) responds that:

“There is only one possible answer. In a statethe demands of each citizen for the fulfillmentof his best self must be taken as of equal worth:and the utility of a right is therefore its valueto all the members of the State. The rights, forinstance, of freedom of speech do not meanfor those in authority, or for members of somechurch or class. Freedom of speech is a righteither equally applicable to all citizens withoutdistinction or not applicable at all.”

These remarks are no more applicable in politicalphilosophy than they are in human rights jurisprudence.The matter is brought into focus if we substitute theright to participate in the government of one’s countryfor the freedom of speech. The proposition would thenbe that the right to participate in the government ofone’s country is not reserved for those in authority, orfor members of some special class or groups, but it is aright either equally applicable to all citizens withoutdistinction or not applicable at all. This utilitarian factoris clarified in Art. 21 (1) for it speaks of “every citizen”

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being entitled to participate in the government of hiscountry. It could easily have said “Every member of apolitical party….” But it did not, and this could nothave been without cause. It would be recalled, indeedthat the provision existed in its present terms ever sincethe one party era. At that time the political activityhad to be conducted under the auspices and control ofthe Chama Cha Mapinduzi and it could have beenargued that this left no room for independentcandidates. It is certainly this notion which was at thebase of Mr. Mussa’s submission to the effect that theamendments did take away the right ofindependent candidates for such right never existedbefore. The argument is no doubt attractive, but, atleast with effect from July 1,1992, Art.21 (1) has to beread in a multi-party and non-party context. That iswhat I can gather from Art.20 (4)- previously Art.20(20- which was deliberately rephrased to accommodate(sic) both situations. It is illogical for law to providethat no person shall be compelled to belong to apolitical party and in the same breath to provide thatno person shall run for office except through a politicalparty. If it were the intention of the Legislature toexclude non-party citizens from participating in thegovernment of their country, it could easily have doneso vide the same Eighth Constitutional AmendmentAct by removing the generality in Art. 21 (1).

The position I see is now this: By virtue of Art .21 (1)every citizen is entitled to participate in the governmentof the country, and by virtue of the provisions of Art20 (4), such citizen does not have to be a member ofany political party; yet by virtue of Art. 39 (c) andothers to that effect, no citizen can run for the officeunless he is a member of and sponsored by a politicalparty. This is intriguing. I am aware that the exerciseof the right under Art. 21 (1) has to be “in accordancewith the procedure provided by or under the law,” butI think that while participation through a political partyis a procedure, the exercise of the right of participationthrough a political party only is not a procedure but anissue of substance. The message is either you belongto a political party or you have no right to participate.There is additionally the dimension of free electionsalluded to in Art .21 (1). In the midst of this unusualdilemma, I had to turn to the canons of statutory andconstitutional law.

When the framers of the Constitution declared thefundamental rights in part III of Chapter One thereof,they did not do so in vain, it must have been with theintention that these rights should be exercisable.

It is therefore established that the provisions of theConstitution should always be given a generous and

purposive construction. In A.G of Gambia Vs. JOBE(1985) LRC (Const) 556,565, Lord Diplock said:

“A constitution and in particular that part of itwhich protects and entrenches fundamentalrights and freedoms to which all persons in thestate are to be entitled, is to be given a generousand purposive construction.”

This echoes what was said earlier in British CoalCorporation v. The King (1935) AC 500,518, to theeffect that in interpreting a constituent (sic) or organicstatus of construction most beneficial to the widestpossible amplitude of its power must be adopted. Andnot much later, in James v. Commonwealth of Australia(1935) AC 578,614 Lord Wright, M.R. said:

“It is true that a Constitution must not beconstructed in any narrow and pedantic sense.The words used are necessarily general, andtheir full import and true meaning can oftenbe appreciated when considered, as the yearsgo on, in relative to the vicissitudes of fastwhich from time emerge. It is not that themeaning of the word changes, but the changingcircumstances illustrate and illuminate the fullimport of the meaning.”

This approach is directed principally at revolvingdifficulties that may be in a single provision. Thestrategy according to these authorities, is to approachthe provision generously and liberally particularlywhere it enacts a fundamental right. The case beforeme takes us a stage further. What happens when aprovision of the constitution enacting a fundamentalright appears to be in conflict with another provisionin the Constitution? In that case, the principle ofharmonisation has to be called in aid. The principleholds that the entire Constitution has to be read as anintegrated whole and no one particular provisiondestroying (sic) the other but sustaining the otherwiseMuhammad Nawaz Sharif (above), P.601. If thebalancing act should succeed, the court is joined to giveeffect to all the contending provisions. Otherwise, thecourt is enjoined to incline to the realization of thefundamental rights and may for that purpose disregardeven the clear words of a provision if their applicationwould result in gross injustice. CHITALEY, p. 716,renders the position.

"... It must be remembered that the operation of anyfundamental right may be excluded by any other Articleof the Constitution or may be subject to an exceptionlaid down in some other Article. In some cases, it is theduty of the court to construe the different articles in

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the constitution in such a way as to harmonize themand try to give effect to all the articles as far as possible.One of the conflicting articles will have to yield to theother."

These propositions are by no means novel but are wellknown in common law jurisdictions. They rest aboveall on the realization that it is the fundamental rights,which are fundamental, and not the restrictions. In thecase of Sture S. v. Crown in Shield (1819) 4 LawEd.529, at 550, Chief Justice Marshall of the Supreme court of the U.S said:

"Although the spirit of an instrument especially aconstitution, is to be respected, not the less than itsletter, yet the spirit is to be collected chiefly from itswords. It would be dangerous in the extreme to inferfrom extrinsic circumstances that a case for which thewords of an instrument expressly provide its operationwhere words conflict with each other, where thedifferent clauses of an instrument bear upon each otherand would be inconsistent unless the natural and wordsbe varied."

Construction becomes necessary and the departurefrom the obvious meaning of words is justifiable. Butin any case, the plain meaning of a provision notcontradicted by any other provision in the sameinstrument should not be disregarded because if we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would without hesitation, unite in rejecting the application.

For every thing I have endeavored to state and notwithstanding the exclusionary element to that effectin article 39. 67 and 77 of the constitution as well asS.39 of the local authorities Act, I declare and directthat it shall be lawful candidates along with candidatessponsored by political parties to contest Presidential,Parliamentary, and local council elections. This willnot apply to the council elections due in a few days.

We now come to the sixth and final issue. A declarationis sought to the effect that it is unconstitutional for thepresident to appoint Zanzibaris to head non-UnionMinistries and departments on the main land. Thismatter invites a bit of the union’s history whenTanganyika and Zanzibar united in 1964 and theconstitution of the former was adopted as the interimconstitution of the United Republic. At the same timethe government of Tanganyika was abolished. TheUnion operated under interim constitutions until thepromulgation of the 1977 constitution.

Article 4 (3) of the constitution provides for thedivision of governmental functions on the basis of theunion and non-union matters. Authority in respect ofall union matter as well as non- union matters in andfor the Mainland is vested in the Union Governmentby Art. 34 (1). Likewise all executive power of theUnited Republic with respect to Union and non-unionmatters in and for the Mainland is vested in thePresident. He may exercise that power either directlyor through delegation to other persons holding officein the services of the United Republic. The presidentis also empowered to constitute and abolish officesand pursuant to the provisions of Art. 36 (2), he haspower to appoint persons to offices in the publicservices of the United Republic subject to otherprovisions of the constitution. In the exercise of thefunctions of his office, the president has unfettereddiscretion apart from complying with the provisionsof the constitution and law. Article 55(1) additionallyempowers the President to appoint Ministers who shallbe responsible for such offices as the president mayfrom time to time establish. He also has power toappoint Regional Commissioners for the regions in theMainland. Zanzibar retains its internal autonomy inrespect of non-union matters falling on that side.

It was argued by Mr. Mbezi that the structure of theconstitution points to a dual role for Union government,i.e. as a Government responsible for Union mattersand non-union matters for and in the Mainland. Healso submitted that the division of union from non-union matters could not have been done without apurpose. In his view, non-union matters on theMainland have to be run by Mainlanders, and the factthat they are constitutionally placed under the Uniongovernment does not amount to their unionization. Hetherefore thinks that the appointment of Zanzibaris torun these matters offends Art.4 (3). Mr. Mussaresponded by pointing out that no provision in theconstitution compelled the President not to appointZanzibaris to such positions and should actually bediscriminatory if he did not do so. In his view theexercise of the power of appointment was a matter ofpolicy but not one founded on the Constitution.

The issue of Zanzibaris in “Mainland” ministries ispresently a matter of considerable interest, and seemsto derive more drive from the polarized politicalsituation which culminated in the ill fatedparliamentary notion for the government ofTanganyika. But sentiments apart, one would certainlywant to know the judicial position of non-union mattersin and for the Mainland. This dualism factor assertedby Mr. .Mbezi was recognized and articulated by theCourt of Appeal in Haji v.Nungu & Anor(1987) LRC

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(Const) 224 where Chief Justice Nyalali further stated(at p.231) that in the basic structure of the constitutionthere are matters which concern exclusively that areawhich before the union constituted what was thenknown as Tanganyika. He went on to say that thesematters under the scheme of the constitution fall underthe exclusive dormine government of the unitedrepublic. Of course that case was concerned with adifferent matter thus the jurisdiction of the High Courtof the United Republic in election petitions yet evenwith that reference to the exclusive dormine of thegovernment of the United Republic of Tanganyikamatters. I can not read a suggestion of the unionizationof those matters. There are various types ofconstitutions that are classified as federal and ourscould carry that appellation in the absence of a standardor ideal type of a federal constitution.

It is not uncommon for such constitutions to enumeratethe areas reserved to the federated states leaving therest to the federal government. The founders of thespheres could have enumerated, exercised power andleft the rest to the union government. In that case thephylosophy "changu ni changu, chako ni chetu" (mineis mine, yours is yours) would have made considerablesense for everything in and for the main land wouldhave then been a union matter but that was carefullyavoided. Instead, the Constitution enumerates Union

matters only and expressly declares the rest to be non-union; and this is so according to art. 4(3), “For thepurpose of the more efficient discharge of publicaffairs…and for the effective division of functions inrelation to those affairs…” I think, with respect, thereis reason to insist on the significance of the division.It occurs to me, that the fact of the non-union mattersin the Mainland could have the effect of blurring thatdivision.

That said, however, it is difficult to draw the inferenceof unconstitutionality, which the Court was called uponto draw in relation to those appointments. Theprovisions to which I have referred, notably Art. 36(2)and Art. 55(1), do not limit the President in his choiceof officers or Ministers or in their disposition. Thefurthest we can go is to fall back to the words “subjectto the other provisions of this Constitution” in Art.36(2) and this would lead to the division of Union andnon- union matter in Art. 4(3). It can then be suggestedthat to keep the division effective, there is an impliedinvitation to keep Tanganyika matters Tanganyikan. Abreach of the Constitution, however, is such a graveand serious affair that it cannot be arrived at by mereinferences, however attractive, and I apprehend thatthis would require proof beyond reasonable doubt. Ihave therefore not found myself in a position to makethe declaration sought and I desist from doing so.

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RULING

This is an application under Sections 68 (c) and (e)and 95 as well as Order XXXVII, Rule 1 and 2 of theCiviI Procedure Code by Felix Joseph Mavika,Leornard Manyara Massawe, Beatus Paul Duma, andGaspar Eliheri Maruma and Badi Abdallah Khamision behalf of 353 others against Dar es Salaam CityCouncil and Ilala Municipal Commission. Theapplication which is accompanied by an affidavit ofFelix Joseph Mavika on beha1f of the others, hereinafter to be referred to as applicants, seeks thefollowing orders:

(i) an interim order to restrain the Respondentsseverally and jointly by themselves or through theiragents, workpersons e.t.c. from dumping solid andliquid wastes in Vingunguti area because ofpollution of the area’s environment as well asendangering the health and lives of the applicants,their families and other residents pending thedetermination of an application for temporaryinjunction;

(ii) an interim order restraining the Respondentsseverally and jointly by themselves or through theiragents, workpersons etc. from using the abattoirlocated in Vingunguti area for slaughtering ofanimals due to dilapidation and total disrepair aswell as due to its vicinity to the dumping site andthe use of polluted waste from a water hole dugnear the dumping site pending the determinationof an application for temporary injunction; and

(iii) a temporary injunction to restrain the respondentsfrom dumping solid and liquid wastes inVingunguti area and the use of abattoir locatedin the area pending the determination for the suit.

It is further noted that the applicants/ plaintiffs havefiled a substantive suit pleading for specific remedies

and reliefs among which is a prayer for a permanentinjunction prohibiting the respondents/defendants fromdumping liquid and solid wastes in Vingunguti area.

The applicants are advocated by a team of learnedcounsels with Rugemeleza Nshala as the lead counsel.The respondents on other hand, are represented by MaMakuru, learned City Solicitor and Mr. Maganga thelegal officer of the Ilala Municipal Commission. Therespondents upon being served with the applicationand the suit filed a counter affidavit, a written statementof defence and a notice of preliminary objection. Theessence of the preliminary objection is to challengethe locus standi of the applicant, the incompetence ofthe application as well as the absence or lack of a causeof action on the part of the applicants. In arguing thepreliminary objection, M/s. Makuru the learned CitySolicitor has contended that the matter before the courtis a public right because the applicants are allegingpublic nuisance, the existence of which if proved wouldcall into play the provisions of Section 66 of the CivilProcedure Code requiring the consent of the AttorneyGeneral. Elaborating further, the learned City Solicitorsubmitted that where public rights are at issue,individuals would have no right to representindividuals hence the applicants as individuals wouldhave no locus standi in the matter before the courtwithout the consent of the Attorney General.

In reply to this point, Mr. Nshala learned advocate wasof the view that the application was properly beforethe court in terms of Section 66 (2) of the CivilProcedure which Mr. Nshala contended does not takeaway any independent right of a suit that may exist. Itwas also Mr. Nshala’s considered view that theapplicants’ action is based on the respondents’ failureto perform a statutory duty under Act No. 8/1982 and the accompanying regulations there to which require therespondents to ensure that their residents live in ahealthy and clean environment. By dumping the liquidand solid wastes at Vingunguti area where the

FELIX JOSEPH MAVIKA & 4 OTHERS

VERSUS

DAR ES SALAAM CITY COMMISSIONER & ILALA MUNICIPALCOMMISSION

(Civil Case No. 316 of 2000)

High Court of Tanzania at Dar Es Salaam (Justice S. Ihema):October 23rd 2000

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Applicants live, Mr. Nshala submitted that therespondents have failed to perform as required bySection 53, of Act No. 8/82, which in itself gives theapplicant a right to bring this matter in court. Mr.Nshala also called in support the doctrine of publicinterest litigation enshrined in Article 26 of theConstitution of Tanzania upon which the High Courtof Tanzania has already given effective reliefs in thecases of Joseph Kessy & Others Vs DCC and FestoBalegele & 74 Other Vs Dar es Salaam City Council.And in conclusion Nshala urged that as the applicantssought leave and were accorded such leave to institutea representative suit, they have a right to bring thisaction without consent of the Attorney General.

On careful consideration of the respective submissionsof both counsel on whether or not the applicants havelocus standi to ‘bring the matter before this Court, Iam, satisfied that the applicants do have a leg to standon. There is authority in Section 66 (2) of the CivilProcedure Code as well as the doctrine of publicinterest litigation enshrined in Artic1e 26 (2) of theConstitution applied with approval by this Court inthe cases cited above. In the event that this ground ofobjection fails and is dismissed, this then disposes ofthe grounds of objection relating to locus standi andincompetence of the application.

The respondents have further advanced the ground thatthe applicants have no cause of action to assert a publicright or special damage suffered over and beyond thegeneral public. Arguing this point, the learned CitySolicitor argued that there is nothing in the applicationto show that the Attorney General has been asked toperform this public right or refused consent to theapplicants. The learned City Solicitor argues stronglythat applicants cannot be allowed to circumvent thelaw to enforce a public right and that, the applicationis an attempt to fetter the statutory powers of theAttorney General. And with regard to the existence ofthe dumping site at Vingunguti, the learned CitySolicitor informed the Court that the site has a dualpurpose, as a dumping site and a reclaimed land.

In reply Mr. Nshala has submitted that the applicants’have ably indicated in the deposition that there arespecial interests over and beyond public interest. Thespecial interests emanate from pollution, foul andnaxious smell due to the dumping of liquid and solidwastes.

I note that from careful analysis of the depositions ofthe applicants and the respondents, as well as thesubmissions, the grounds of the

preliminary objection and appeal are interelated. Theapplicants who are claiming to be affected by the actionof the respondents in the dumping of liquid and solidwastes as well as failure to provide clean environmenthave certainly a cause of action against the respondent.Applicants can be heard on the matters raised in theirdeposition in asserting both a public right and/ or specialdamage suffered or likely to be suffered over andbeyond the general public. In conclusion, I haveno doubt in my mind that the matter is properly beforethe court for trial of the issue presented.

Having disposed of the preliminary objection raisedby the respondents, I will proceed to address the prayersin the chamber application. These are:

i) to issue an Interim Order restraining therespondents severally and jointly from dumpingsolid and liquid wastes in Vingunguti area due topollution and endangering the health and lives ofthe applicants and other residents;

ii) to issue an interim order to restrain theRespondents from using the abattoir located inVingunguti area; and

iii) to issue a temporary injunction to do as providedin (i) and (ii) above.

As it is on record that the parties were allowed to arguethe preliminary objection and the chamber applicationsimultaneously, the relevant prayers to be addressed atthis stage are the temporary injunction pending thedetermination of the main suit.

I have given due consideration to these prayers fortemporary injunction and I have come to the considereddecision to defer making a decision on the prayers untilthe final determination of the suit. I havereached this decision partly due to the fact that theapplicants / plaintiffs have made similar assertions inparas 3 - 19 both in the affidavit and the plaint,assertions which in my considered view, need to beverified at the trial. To this end, interest of justicedemands that the suit filed proceed for trial as soon asis expedient.

It is ordered accordingly.

S. IHEMAJUDGE23/10/2000

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JUDGEMENT OF THE COURT

NYALALI, C.J.

This case clearly demonstrates how an understandingof our Country’s past is crucial to a betterunderstanding of our present, and why it is importantwhile understanding our past, to avoid living in thatpast. The respondents, namely, Lohay Akonaay andJoseph Lohay are father and son, living in the villageof Kambi ya Simba, Mbulumbulu Ward, in ArushaRegion. In January 1987 they successfully instituted asuit in the Court of the Resident Magistrate for ArushaRegion for recovery of a piece of land held undercustomary law. An eviction order was subsequentlyissued for eviction of the judgement debtors and therespondents were given possession of the piece of landin question.

There is currently an appeal pending in the High Courtat Arusha against the judgement of the trial court. Thisis Arusha High Court Civil Appeal No. 6 of 1991.While this appeal was pending, a new law which cameinto force on the 28th December 1992, was enacted byParliament, declaring the extinction of customaryrights in land, prohibiting the payment of compensationfor such extinction, ousting the jurisdiction of thecourts, terminating proceedings pending in the courts,and prohibiting the enforcement of any court decisionor decree concerning matters in respect of whichjurisdiction was ousted. The law also established, interalia, a tribunal with exclusive jurisdiction to deal withthe matters taken out of the jurisdiction of the courts.This new law is the Regulation of Land Tenure(Established Villages) Act, 1992, Act No. 22 of 1992,hereinafter called Act No. 22 of 1992. Aggrieved bythis new law, the respondents petitioned against theAttorney General in the High Court, under articles 30(3) and 26 (2) of the Constitution of the UnitedRepublic of Tanzania, for a declaration to the effectthat the new law is unconstitutional and consequentlynull and void. The High Court, Munuo, J. granted thepetition and ordered the new law struck off the statute

book. The Attorney General was aggrieved by thejudgement and order of the High Court, hence hesought and obtained leave to appeal to this Court. Mr.Felix Mrema, the learned Deputy Attorney General,assisted by Mr. Sasi Salula, State Attorney, appearedfor the Attorney-General, whereas Messrs Lobulu andSang’ka, learned advocates, appeared for therespondents.

From the proceedings in this court and the court below,it is apparent that there is no dispute between the partiesthat during the colonial days, the respondents acquireda piece of land under customary law. Between 1970and 1977 there was a countrywide operationundertaken in the rural areas by the Government andthe ruling party, to move and settle the majority of thescattered rural population into villages on the mainlandof Tanzania. One such village was Kambi ya Simbavillage, where the residents reside. During thisexercise, commonly referred to as Operation Vijiji,there was wide spread reallocation of land betweenthe villagers concerned. Among those affected by theoperation were the respondents, who were moved awayfrom the land they had acquired during the colonialdays to another piece of land within the same village.

The respondents were apparently not satisfied with thisreallocation and it was for the purpose of recoveringtheir original piece of land that they instituted the legalaction already mentioned. Before the case wasconcluded in 1989, subsidiary legislation was madeby the appropriate Minister under the LandDevelopment (Specified Areas) Regulations of 1986read together with the Rural Lands (Planning andUtilization) Act, 1973, Act No. 14 of 1973extinguishing all customary rights in land in 92 villageslisted in a schedule. This is the Extinction of CustomaryLand Right Order, 1987 published as GovernmentNotice No. 88 of 13th February 1987. The order vestedthe land concerned in the respective District Councilshaving jurisdiction over the area where the land issituated. The respondents’ village is listed as Number22 in that schedule

HON. ATTORNEY GENERALVERSUS

LOHAY AKNONAA Y & JOSEPH LOHAY

(Civil Appeal No. 31 of 1994)

Court of Appeal of Tanzania at Dar es Salaam (Coram: Nyalali, C.J., Makame, J.A and Kisanga. J.A.):October 21st 1994

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in areas within Arusha region.

The Memorandum of appeal submitted to us for theappellant contains nine grounds of appeal, two ofwhich (grounds number 8 and 9) were abandonedin the course of hearing the appeal. The remainingseven grounds of appeal read as follows:

1. That the Honourable Trial Judge erred in fact andlaw in holding that a deemed Right of Occupancyas defined in section 2 of the Land Ordinance Cap113 is “property” for the purposes of Article 24(1)of the Constitution of the United Republic ofTanzania 1977 and as such its deprivation isunconstitutional;

2. That the Honourable Trial Judge erred in law andfact in holding that section 4 of the Regulation ofLand Tenure (Established Villages) Act, 1992,precludes compensation for unexhaustedimprovements;

3. That the Honourable Trial Judge erred in law andfact in holding that any statutory provision oustingthe jurisdiction of the courts is contrary to theConstitution of the United Republic of Tanzania;

4. That the Honourable Trial Judge erred in law byholding that the whole of the Regulation of LandTenure (Established Villages) Act 1992 isunconstitutional;

5. That the Honourable Trial Judge erred in law andfact in holding that under the Regulation of LandTenure (Established Villages) Act 1992, the Respondents acquired land and reallocated the same to other people and in holding that the Act was discriminatory;

6. That having declared the Regulation of Land Tenure(Established Villages) Act 1992 unconstitutional,the Honourable Judge erred in law in proceedingto strike it down; and that

7. The Honourable Trial Judge erred in fact by quotingand considering a wrong and non-existingsection of the law.

The respondents on their part submitted two noticesbefore the hearing of the appeal. The first is a Noticeof Motion purportedly under Rule 3 of the TanzaniaCourt of Appeal Rules, 1979, and the second, is aNotice of Grounds for affirming the decision in termsof Rule 93 of the same. The Notice of Motion sought

to have the court strike out the grounds of appealnumbers 1, 5, 8 and 9. After hearing both sides, wewere satisfied that the procedure adopted by therespondents was contrary to rules 45 and 55 whichrequire such an application to be made before a singlejudge. We therefore ordered the Notice of Motion tobe struck off the record.

As to the Notice of Grounds for affirming the decisionof the High Court, it reads as follows:

1. As the appellant had not pleaded in his reply tothe petition facts or points of law showingcontroversy, the court ought to have held that thepetition stands unopposed.

2. Since the Respondents have a court decree in theirfavour, the Legislature cannot nullify the saiddecree as it is against public policy, and againstthe Constitution of Tanzania.

3. As the Respondents have improved the land, theyare by that reason alone entitled to compensationin the manner stipulated in the Constitution andthat compensation is payable before their rightsin land could be extinguished.

4. Possession and use of land constitute “property”capable of protection under the Constitution ofTanzania. Act No. 22 is therefore unconstitutionalto the extent that it seeks to deny compensationfor loss of use; it denies right to be heard beforeextinction of the right.

5. Operation Vijiji gave no person a right to occupyor use somebody else’s land, hence no rights couldhave been acquired as a result of that “operation”

6. .....

7. The victims of Operation Vijiji are entitled toreparations. The Constitution cannot thereforebe interpreted to worsen their plight.

8. The land is the Respondent's only means to sustainlife. Their rights therein cannot therefore beextinguished or acquired in the manner theLegislature seeks to do without violating theRespondents’ constitutional right to life.

For purposes of clarity, we are going to deal with thegrounds of appeal one by one, and in the process, takeinto account the grounds submitted by the respondentsfor affirming the decision wherever they are relevantto our decision.

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Ground number one raises an issue which has farreaching consequences to the majority of the peopleof this country, who depend on land for their livelihood.Article 24 of the Constitution of the United Republicof Tanzania recognizes the right of every person inTanzania to acquire and own property and to have suchproperty protected. Sub-article (2) of that provisionprohibits the forfeiture or expropriation of suchproperty without fair compensation. It is the contentionof the Attorney-General, as eloquently articulatedbefore us by Mr. Felix Mrema, Deputy Attorney-General, that a “right of occupancy” which includescustomary rights in land as defined under section 2 ofthe Land Ordinance, Cap 113 of the Revised Laws ofTanzania Mainland, is not property within the meaningof article 24 of the Constitution and is therefore notprotected by the Constitution. The Deputy AttorneyGeneral cited a number of authorities, including thecase of AMODU TUAN V. THE SECRETARYSOUTHERN NIGERIA (1921) 2 A.C. 399 and thecase of MTORO BIN MWAMBA V. THEATTORNEY GENERAL (1953) 20 E.A.C.A. 108, thelatter arising from our own jurisdiction. The effect ofthese authorities is that customary rights in land areby their nature not rights of ownership of land, butrights to use or occupy land, the ownership of whichis vested in the community or communal authority.The Deputy Attorney General also contended to theeffect that the express words of the Constitution underArticle 24 makes the right to property, “subject to therelevant laws of the land.”

Mr. Lobulu for the respondents has countered Mr.Mrema’s contention by submitting to the effect thatwhatever the nature of customary rights in land, suchrights have every characteristic of property, ascommonly known and therefore fall within the scopeof article 24 of the Constitution. He cited a number ofauthorities in support of that position, including theZimbabwe case of HEWLETT VS MINISTER OFFINANCE (1981) ZLR 573, and the cases of SHAHVS ATTORNEY-GENERAL (N.2) 1970 EA 523 andthe scholarly article by Thomas AIlen, lecturer in Law,University of Newcastle, published in the Internationaland Comparative Law quarterly, Vol. 42, July 1993 on“Commonwealth constitutions and the right not to bedeprived of property.”

Undoubtedly the learned trial judge, appears to havebeen of the view that customary or deemed rights ofoccupancy are property within the scope of article 24of the Constitution when she stated in her judgement:

“I have already noted earlier on that thepetitioner legally possess the suit land under

customary land tenure under section 2 of theLand Ordinance cap 113. They have not in thisapplication sought any special status, rightsor privileges and the court has not conferredany on the petitioners. Like all other lawabiding citizens of this country, the petitionersare equally entitled to basic human rightsincluding the right to possess the deemed rightsof occupancy they lawfully acquired pursuantto Article 24 (1) of the Constitution and section2 of the Land Ordinance, Cap 113.”

Is the trial judge correct? We have considered thismomentous issue with the judicial care it deserves.We realize that if the Deputy Attorney General iscorrect, then most of the inhabitants of the Tanzaniamainland are no better than squatters in their owncountry. It is a serious proposition. Of course if that isthe correct position in law, it is our duty to agree withthe Deputy Attorney General, without fear or favour,after closely examining the relevant law and theprinciples underlying it.

In order to ascertain the correct legal position, we havehad to look at the historical background of the writtenlaw of land tenure on the mainland of Tanzania, sincethe establishment of British Rule. This exercise hasbeen most helpful in giving us an understanding of thenature of rights or interests in land on the mainland ofTanzania. This historical background shows that theover-riding legal concern of the British authorities, nodoubt under the influence of the Mandate of the Leagueof Nations and subsequently of the TrusteeshipCouncil, with regard to land, was to safeguard, protect,and not to derogate from the rights in land of theindigenous inhabitants. This is apparent in thePreamble to what was then known as the Land TenureOrdinance, Cap 113 which came into force on 26th

January, 1923. The Preamble reads:

“Whereas it is expedient that the existingcustomary rights of the natives of theTanganyika Territory to use and enjoy the landof the Territory and the natural fruits thereofin sufficient quantity to enable them to providefor the sustenance of themselves, their familiesand their posterity should be assured, protectedand preserved;

AND WHEREAS it is expedient that the rights andobligations of the Government in regard to the wholeof the lands within the Territory and also the rightsand obligations of cultivators or other persons claimingto have an interest in such lands should be defined bylaw;

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BE IT THEREFORE ENACTED by the Governorand Commander-in-Chief of the Tanganyika Territoryas follows. . .”

It is well known that after a series of minoramendments over a period of time, the LandTenure Ordinance assumed its present title andform as the Land Ordinance; Cap 113. Its basicfeatures remain the same up to now. One ofthe basic features is that all land is declared tobe public land and is vested in the governingauthority in trust for the benefit of theindigenous inhabitants of this country. Thisappears in section 3 and 4 of the Ordinance.

The underlying principle of assuring, protecting andpreserving customary rights in land is also reflectedunder article 8 of the Trusteeship Agreement, underwhich the mainland of Tanzania was entrusted by theUnited Nations to the British Government. Article 8reads:

“In framing laws relating to the holding ortransfer of land and natural resources, theAdministering Authority shall take intoconsideration native laws and customs, andshall respect the rights and safeguard theinterests, both present and future, of the nativepopulation. No native land or naturalresources may be transferred except betweennatives, save with the previous consent of thecompetent public authority. No real rights overnative land or natural resources in favour ofnon-natives may be created, except with the same consent.”

With this background in mind, can it be said that thecustomary or deemed rights of occupancy recognizedunder the Land Ordinance are not property qualifyingfor protection under article 24 of the Constitution? TheDeputy Attorney-General has submitted to the effectthat the customary or deemed rights of occupancy,though in ordinary parlance may be regarded asproperty, are not constitutional property within thescope of Article 24 because they lack the minimumcharacteristics of property as outlined by Thomas AlIenin his article earlier mentioned where he states:

“The precise content of the bundle of rightsvaries between legal systems, but nonethelessit is applied throughout the Commonwealth.At a minimum, the bundle has been taken toinclude the right to exclude others from thething owned, the right to use or receive incomefrom it, and the right to transfer to others.

According to the majority of Commonwealthcases, an individual has property once he orshe has a sufficient quantity of these rights ina thing. What is ‘sufficient’ appears to varyfrom case to case, but it is doubtful that a singlestrand of the bundle would be consideredproperty on its own.”

According to the Deputy Attorney General, customaryor deemed rights of occupancy lack two of the threeessential characteristics of property. First, the ownerof such a right cannot exclude all others since the landis subject to the superior title of the President of theUnited Republic in whom the land is vested. Second,under section 4 of the Land Ordinance, the occupantof such land cannot transfer title without the consentof the President.

With due respect to the Deputy Attorney General, wedo not think that his contention on both points iscorrect. As we have already mentioned, the correctinterpretation of S 4 and related sections abovementioned is that the President holds public land intrust for the indigenous inhabitants of that land. Fromthis legal position, two important things follow. Firstly,as trustee of public land, the President’s power islimited in that he cannot deal with public land in amanner in which he wishes or which is detrimental tothe beneficiaries of public land. In the words of S. 6(1)of the Ordinance, the President may deal with publicland only “where it appears to him to be in the generalinterests of Tanganyika.” Secondly, as trustee, thePresident cannot be the beneficiary of public land. Inother words, he is excluded from the beneficial interest.

With regard to the requirement of consent for thevalidity of title to the occupation and use of publiclands, we do not think that the requirement applied tothe beneficiaries of public land, since such aninterpretation would lead to the absurdity oftransforming the inhabitants of this country, who havebeen in occupation of land under customary law fromtime immemorial, into mass squatters in their owncountry. Clearly that could not have been the intentionof those who enacted the land Ordinance. It is a wellknown rule of interpretation that a law should not beinterpreted to lead to an absurdity. We find supportfrom the provisions of article 8 of the TrusteeshipAgreement which expressly exempted dispositions ofland between the indigenous inhabitants from therequirement of prior consent of the governing authority.In our considered opinion, such consent is requiredonly in cases involving disposition of land byindigenous inhabitants or natives to non-natives inorder to safeguard the interests of the former. We are

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satisfied in our minds that the indigenous populationof this country are validly in occupation of land asbeneficiaries of such land under customary law andany disposition of land between them under customarylaw is valid and requires no prior consent from thePresident.

We are of course aware of the provisions of the landRegulations, 1948 and specifically regulation 3 whichrequires every disposition of a Right of Occupancy tobe in writing and to be approved by the President. Inour considered opinion the land Regulations apply onlyto a Right of Occupancy granted under s.6 of the LandOrdinance and have no applicability to customary ordeemed rights of occupancy, where consent by a publicauthority is required only in the case of a transfer by anative to a non-native. A contrary interpretation wouldresult in the absurdity we have mentioned earlier.

As to the contention by the Deputy Attorney-Generalto the effect that the right to property under Article 24of the Constitution is derogated from by the provisioncontained therein which subjects it to “the relevantlaws of the land,” we do not think that, in principle,that expression, which is to be found in other parts ofthe Constitution, can be interpreted in a manner whichsubordinates the Constitution to any other law. It is afundamental principle in any democratic society thatthe Constitution is supreme to every other law orinstitution. Bearing this in mind, we are satisfied thatthe relevant provisions means that what is stated inthe particular part of the Constitution is to be exercisedin accordance with relevant law. It hardly needs to besaid that such regulatory relevant law must not beinconsistent with the Constitution.

For all these reasons therefore, we have been led to theconclusion that customary or deemed rights in land,though by their nature are nothing but rights to occupyand use of the land, are nevertheless real propertyprotected by the provisions of article 24 of theConstitution.

It follows therefore that deprivation of a customaryor deemed right of occupancy without faircompensation is prohibited by the Constitution. Theprohibition of course extends to a granted right ofoccupancy. What is fair compensation depends on thecircumstances of each case. In some cases areallocation of land may be fair compensation. Faircompensation however is not confined to what isknown in law as unexhausted improvements.Obviously where there are unexhausted improvements,the constitution as well as the ordinary land law

requires fair compensation to be paid for itsdeprivation.

We are also of the firm view that where there are nounexhausted improvement, but some effort has beenput into the land by the occupier, that occupier isentitled to protection under Article 24 (2) and faircompensation is payable for deprivation of property.We are led to this conclusion by the principle, statedby Mwalimu Julius K. Nyerere in 1958 and whichappears in his book “Freedom and Unity”publishedby Oxford University Press, 1966. Nyerere states, interalia:

“When I use my energy and talent to clear apiece of ground for my use it is clear that I amtrying to transform this basic gift from God sothat it can satisfy a human need. It is true,however, that this land is not mine, but theefforts made by me in clearing the land enableme to lay claim of ownership over the clearedpiece of ground. But it is not really the landitself that belongs to me but only the clearedground, which will remain mine as long as Icontinue to work on it. By clearing that groundI have actually added to its value and haveenabled it to be used to satisfy a human need.Whoever then takes this piece of ground mustpay me for adding value to it through clearingit by my own labour.”

This in our view deserves to be described as “theNyerere Doctrine of Land Value” and we fully acceptit as correct in law.

We now turn to the second ground of appeal. This oneposes no difficulties. The genesis of this ground ofappeal is the finding of the trial judge where she states,

“In the light of the provisions of Article 24 (I)and (2) of the Constitution, section 3 and 4 ofAct No. 22 of 1992 violate the Constitution bydenying the petitioners the right to go onpossessing their deemed rights of occupancy andwhat is worse, denying the petitionerscompensation under section 3 (4) of Act No. 22of 1992.”

Like both sides to this case, we are also of the viewthat the learned trial judge erred in holding that theprovisions of section 4 of Act. No. 22 of 1992 deniedthe petitioners or any other occupier compensation forunexhausted improvements. The clear language of thatsection precludes compensation purely on the basis of

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extinction of customary rights in land. The sectionreads:

“No compensation shall be payable only onaccount of loss of any right or interest in orover land which has been extinguished undersection 3 of this Act.”

But as we have already said, the correct constitutionalposition prohibits not only deprivation of unexhaustedimprovements without fair compensation, but everydeprivation where there is value added to the land. Weshall consider the constitutionality of Section 4 laterin this judgment.

Ground number 3 attacks the finding of the trial judgeto the effect that the provisions of Act No. 22 of 1992which oust the jurisdiction of the Courts from dealingwith disputes in matters covered by the Act areunconstitutional. The relevant part of the judgementof the High Court reads as follows:

“The effect of Sections 5 and 6 of Act No. 22of 1992 is to oust the jurisdiction of the Courtsof law in land disputes arising under thecontroversial Act No. 22 of 1992 andexclusively vesting such jurisdiction in landtribunals. Such ousting of the courtsjurisdiction by section 5 and 6 of Act No. 22/92 violates Articles 30(1), (3), (4) and 108 ofthe Constitution.”

The Deputy Attorney General has submitted to theeffect that the Constitution allows, specifically underarticle 13 (6) (a), for the existence of bodies orinstitutions other than the courts for adjudication ofdisputes. Such bodies or institutions include the LandTribunal vested with exclusive jurisdiction underSection 6 of Act No. 22 of 1992. We are grateful forthe interesting submission made by the DeputyAttorney General on this point, but with due respect,we are satisfied that he is only partly right. We agreethat the Constitution allows the establishment of quasi-judicial bodies, such as the Land Tribunal. What wedo not agree is that the Constitution allows the courtsto be ousted of jurisdiction by conferring exclusivejurisdiction on such quasi-judicial bodies. It is the basicstructure of a democratic Constitution that state poweris divided and distributed between three state pillars.These are the Executive vested with executive power;the Legislature vested with legislative power; and theJudicature vested with judicial powers.

This is clearly so stated under article 4 of theConstitution. This basic structure is essential to any

democratic constitution and cannot be changed orabridged while retaining the democratic nature of theconstitution. It follows therefore that wherever theconstitution establishes or permits the establishmentof any other institution or body with executive orlegislative or judicial power, such institution or bodyis meant to function not in lieu of or in derogation ofthese three central pillars of the state, but only in aidof and subordinate to those pillars. It follows thereforethat since our Constitution is democratic, any purportedouster of jurisdiction of the ordinary courts to dealwith any justiciable dispute is unconstitutional. Whatcan properly be done wherever need arises to conferadjudicative jurisdiction on bodies other than the courtsis to provide for finality of adjudication such as byappeal or review to a superior court, such as the HighCourt or Court of Appeal.

Let us skip over ground number 4 which is theconcluding ground of the whole appeal. We shall dealwith it later. For now, we turn to ground number 5.This ground relates to that part of the judgment of thelearned trial judge, where she states:

“It is reverse discrimination to confiscatethe petitioners deemed right of occupancyand reallocate the same to some other needypersons because by doing so the petitionersare deprived of their right to own land uponwhich they depend for a livelihood which waswhy they acquired it back in 1943.”

There is merit in this ground of appeal. Act No. 22 of1992 cannot be construed to be discriminatory withinthe meaning provided by Article 13(5) of theConstitution. Mr. Sangka’s valiant attempt to show thatthe Act is discriminatory in the sense that it deals onlywith people in the rural areas and not those in the urbanareas was correctly answered by the Deputy AttorneyGeneral that the Act was enacted to deal with a problempeculiar to rural areas. We also agree with the learnedDeputy Attorney General, that the act of extinguishingthe relevant customary or deemed rights of occupancydid not amount to acquisition of such rights. As it wasstated in the Zimbabwe case of HEWLETT VSMINISTER OF FINANCE cited earlier where anextract of a judgment of Viscount Dilhome isreproduced stating:

“Their Lordships agree that a person may bedeprived of his property by mere negative orrestrictive provision but it does not follow thatsuch a provision which leads to deprivationalso leads to compulsory acquisition or use.”

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It is apparent that, during Operation Vijiji whathappened was that some significant number of peoplewere deprived of their pieces of land which they heldunder customary law, and were given in exchange otherpieces of land in the villages established pursuant toOperation Vijiji. This exercise was undertaken not inaccordance with any law but purely as a matter ofgovernment policy. It is not apparent why thegovernment chose to act outside the law, when therewas legislation which could have allowed thegovernment to act according to law, as it was boundto. We have in mind the Rural Lands (Planning andUtilization) Act, 1973, Act No. 14 of 1973, whichempowers the President to declare specified areas toregulate land development and to make regulations tothat effect, including regulations extinguishingcustomary rights in land and providing forcompensation for unexhausted improvements, as wasdone in the case of Rufiji District under GovernmentNotice Nos. 25 of 10th May 1974 and 216 of 30th August1974. The inexplicable failure to act according to law,predictably led some aggrieved villagers to seekremedies in the courts by claiming recovery of the landsthey were dispossessed during the exercise. Notsurprisingly most succeeded. To avoid the unravelingof the entire exercise and the imminent danger to lawand order, the Land Development (Specified Areas)Regulations, 1986 and the Extinction of CustomaryLand Rights Order, 1987 were made underGovernment Notice No. 659 of 12th December 1986and Government Notice No. 88 of 13th February 1987respectively. As we have already mentioned earlier inthis judgement, Government Notice No. 88 of 13th

February 1987 extinguished customary land rights incertain villages in Arusha Region, including the villageof Kambi ya Simba where the respondents come from.We shall consider the legal effect of this GovernmentNotice later in this judgement.

For the moment we must turn to ground number 6 ofthe appeal. Although the Deputy Attorney General wasvery forceful in submitting to the effect that the learnedtrial judge erred in striking down from the statute bookthose provisions of Act. No. 22 of 1992 which shefound to be unconstitutional, he cited no authority andindicated no appropriate practice in countries withjurisdiction similar to what may be described as theauthority or force of reason by arguing that the Doctrineof Separation of Powers dictates that only theLegislature has powers to strike out a statute from thestatute book. We would agree with the learned DeputyAttorney General in so far as valid statutes areconcerned. We are unable, on the authority of reason,to agree with him in the case of statutes found by acompetent court to be null and void. In such a situation,

we are satisfied that such court has inherent powers tomake a consequential order striking out such invalidstatute from the statute book. We are aware that in therecent few weeks some legislative measures have beenmade by the Parliament concerning this point.Whatever those measures may be, they do not affectthis case which was decided by the High Court a yearago.

Ground number 7 is next and it poses no difficulty atall. It refers to that part of the High Court’s judgmentwhere the learned trial judge states:

“Furthermore section 3(4) of Act No. 22 of1992 forbids any compensation on account ofthe loss of any right or interest in or over landwhich has been extinguished under section 3of Act No. 22 of 1992.”

As both sides agree, the reference to section 3(4) musthave been a slip of the pen. There is no such section.The learned trial judge must have been thinking ofsection 4 and would undoubtedly have corrected theerror under the Slip Rule had her attention been drawnto it.

We must now return to ground number 4. The genesisof this ground is the part of the judgment of the trialcourt where it states:

“For reasons demonstrated above, the courtfinds that sections 3, 4,5 and 6 of Act No. 22/92, the Regulation of Land Tenure (EstablishedVillages) Act, 1992, violate some provisions ofthe Constitution thereby contravening Article64( 5) of the Constitution. The unconstitutionalAct No. 22 of 1992 is hereby declared null andvoid and accordingly struck down.”

The learned Deputy Attorney-General contends ineffect that the learned trial judge, having found onlyfour sections out of twelve to be unconstitutional, oughtto have confined herself only to striking down the fouroffending sections and not the entire statute. There ismerit in this ground of appeal. There is persuasiveauthority to the effect that where the unconstitutionalprovisions of a statute may be severed leaving theremainder of the statute functioning, then the courtshould uphold the remainder of the statute andinvalidate only the offending provisions. See the caseof Attorney-General of Alberta vs. Attorney-Generalof Canada (1947) AC 503.

In the present case, for the reasons we have givenearlier, we are satisfied that sections 3 and 4 which

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provide for the extinction of customary rights in landbut prohibit the payment of compensation with theimplicit exception of unexhausted improvements onlyare violative of Article 24( 1) of the Constitution andare null and void. Section 4 would be valid if it coveredcompensation for value added to land within the scopeof the Nyerere Doctrine of Land Value.

But as we have pointed out earlier in this judgement,this finding has no effect in the villages of ArushaRegion including Kambi ya Simba, which are listed inthe schedule to Government Notice No. 88 of 1987.The customary rights in land in those listed villageswere declared extinct before the provisions of theConstitution, which embody the Basic Human Rightsbecame enforceable in 1988 by virtue of the provisionsof section 5(2) of the Constitution (Consequential,Transitional and Temporary Provisions) Act, 1984.This means that since the provisions of Basic HumanRights are not retrospective, when the Act No. 22 of1992 was enacted by the Parliament, there were nocustomary rights in land in any of the listed villages ofArusha Region. This applies also to other areas, suchas Rufiji District where, as we have shown, customaryrights in land were extinguished by law in the early1970s. Bearing in mind that Act No. 22 of 1992, whichcan correctly be described as a draconian legislation,was prompted by a situation in some villages in ArushaRegion, it is puzzling that a decision to make a newlaw was made where no new law was needed. A littleresearch by the Attorney-General’s Chambers wouldhave laid bare the indisputable fact that customaryrights in land in the villages concerned had beenextinguished a year before the Bill of Rights came intoforce.

With due respect to those concerned, we feel that thiswas unnecessary panic characteristic of people usedto living in our past rather than in our present which isgoverned by a constitution embodying a Bill of Rights.Such behavior does not augur well for goodgovernance.

With regard to section 5( I) and (2) which prohibitsaccess to the courts or tribunal, terminates proceedingspending in court or tribunal and prohibits enforcementof decisions of any court or tribunal concerning landdisputes falling within Act No. 22 of 1992, we aresatisfied, like the learned trial judge, that the entiresection is unconstitutional and therefore null and void,as it encroaches upon the sphere of Judicature contraryto Article 4 of the Constitution, and denies an aggrievedparty remedy before an impartial tribunal contrary toArticle 13(6)(a) of the same constitution.

The position concerning section 6 is slightly different.That section reads:

“No proceeding may be instituted under thisAct, other than in the Tribunal havingjurisdiction over the area in which the disputearises.”

Clearly this section is unconstitutional only to theextent that it purports to exclude access to the courts.The offending parts may however be severed so thatthe remainder reads, “Proceedings may be institutedunder this Act in Tribunal having jurisdiction over thearea in which the dispute arises.” This would leavethe door open for an aggrieved party to seek a remedyin the courts, although such courts would not normallyentertain a matter for which a special forum has beenestablished, unless the aggrieved party can satisfy thecourt that no appropriate remedy is available in thespecial forum.

The remainder of the provisions of Act No. 22 of 1992including section 7, which could be read without theproviso referring to the invalidated section 3, canfunction in respect of the matters stated under s.7 ofthe Act. To that extent therefore, the learned trial judgewas wrong in striking down the entire statute. To thatextend we hereby reverse the decision of the courtbelow. As neither side is a clear winner in this case,the appeal is partly allowed and partly dismissed. Wemake no order as to costs.

Dated at DAR ES SALAAM this 21st day of December,1994.

F. L. NY ALALICHIEF JUSTICE

L. M. MAKAMEJUSTICE OF APPEAL

R. H. KISANGAJUSTICE OF APPEAL

I certify that this is a true copy of the original.

(B. M. LUANDA)SENIOR DEPUTY REGISTRAR

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The record does not show that notices were issued onthe parties in respect of the "hearing” of theapplication on 2/7/1992. There are no copies of noticesof hearing for 2/7/1992 in the file.

Indeed, the applications were before the ActingDistrict Registrar on 2/7/1992 as was scheduled.On this day one of the respondents’ counsel, theTanzania Legal Corporation appeared. Mr. Maro fromTLC appeared for the respondents, while the applicantswere absent and were not represented. It is not knownhow and by what means the TLC became aware thatthe application had been rescheduled for hearing onthe 2/7/1992 instead of the 24/7/1992 which wasinitially fixed and about which notices of hearing hadbeen issued.

Be that as it may, on 2/7/1992 Mr. Maro made anapplication from the bar which application wasentertained by the Acting District Registrar, and thesame was finally granted. It is of great advantage thatI should reproduce the proceedings that were takenbefore Mr. Lawena, Acting District Registrar, on 2/7/1992, as I strongly feel that those proceedings have aserious bearing on the decision that I am going to makein this matter relating to the objection for adjournmentwhich the respondents have put up. Those proceedingsare as follows:

2/7/1992Coram:- S.J. Lawena Ag. DR.Applicants: - AbsentRespondents: - Mr. Maro – TLC – present.

Mr. Maro: - I have a slight application to make. Wewere only engaged yesterday by the defendants/respondents. Upon perusal of the affidavit, we feel wehave to file a counter affidavit. The 1st respondent isbased in Dar es Salaam, and thus I would need two tothree weeks in order to file my counter affidavit.

RULING

This ruling is being made following an objection bycounsel for the respondents to an application, foradjournment of the hearing of this application that wasmade to the court by counsel for the applicants.

The application, had been fixed for hearing on the 24th

day of July 1992 and the same was clearly so, causelist and both parties appear to have been aware of thesaid hearing as they have both dutifullyattended the court and quite punctually. I have usedthe words “the parties appear to have been served”because the record is some how confusing. The recordshows that the application first came before the DistrictRegistrar on 4/6/1992, after the same was filed on 25/5/1992. On 4/6/1992, both parties were absent, and theapplication was fixed for hearing on 24/7/1992, witha direction that notices be served on the parties. Noticesfor service on the parties were issued on the same day,that is, on 4/6/1992 for service on the parties. Howeveronly one notice of hearing appears to have been servedon one of the counsel for the applicants by LawPartners and Associates, Advocates who duly signedthe notice whose original was returned to the courtand is in the file. With regard to the other parties thereis no proof in the record that they were served.

Then on 24/6/1992, the application was called beforethe Acting District Registrar Mr. S.J., Lawena. On thisdate, the parties were both absent, an order was madethat the application be heard on 2/7/1992 instead ofthe 24th July 1992 which was fixed initially. The reasonfor this change of the date of hearing is contained inthe order thus: “Hearing on 2/7/1992 as directed bythe Hon. Justice. Parties be notified."

Sgd: S.J. Lawena, Ag. D.R24/6/1992.

CHRISTOPHER AIKAWO SHAYO

VERSUS

NATIONAL CHEMICAL INDUSTRIES & PESTICIDES MANUFACTURERSLTD.

(Miscellaneous Civil Apllication No. 126 of 1992)

High Court of Tanzania at Arusha (Justice M.D. Nchalla): July 27th 1992

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raised in the counter affidavit and finally prepare andfile a reply which they intend to file to that counteraffidavit.

Mr. Shayo also applied that they be supplied with anextra copy of the counter affidavit along with itsannextures so that each counsel will have his own copyto work on. Mr. Shayo also applied that during thependancy of this application, the status quo at thefactory be maintained, that is, the respondents berestrained from commissioning their chemical factory.

In reply, Mr. Lobulu, one of the two counsels for therespondents, strongly opposed the application foradjournment. He submitted that theapplication had been fixed for hearing under acertificate of urgency which was filed by the applicanthimself. Mr. Lobulu further submitted that he and hisfellow counsel Mr. Mihayo, had to work round theclock in order to prepare for the hearing of theapplication as fixed and for that reason they had cometo the court fully prepared to argue the application.Moreover, Mr. Mihayo, the second counsel for therespondents came all the way from Dar es Salaam forthe hearing of the application. Also three principleofficers of the defendants travelled to Arusha to thisCourt to attend the hearing of the application. As aresult, the respondents have expended so much publictmoney towards hearing of this pplication as fixed.

Further, Mr. Lobulu submitted that the reason given by theapplicants’ counsel that the counter affidavit is repletewith technical points is not a good ground foradjourning the hearing of the application because theapplicant knew or ought to have known well in handthat such technical points were involved in the matter,and for that reason he ought to have prepared himselflong ago before the hearing date.

As to the applicant’s prayer that the status quo bemaintained, Mr. Lobulu sharply opposedthat prayer, stating that an order granting that prayerwill be tantamount to granting that the whole of thisapplication and the main suit before both of them areargued and fully heard. Moreover, it is illogical andunreasonable for the applicant to apply simultaneouslyfor an adjournment of the hearing of the applicationand for a temporary injunction.

Mr. Lobulu cautioned and referred this Court to para20 (iv) of their counter affidavit, in which it is averredthat the respondents are incurring 6,250U.S. Dollarsdaily, which is equivalent to 1,881, 250/= for paymentof expatriates at the plant. This is the loss the

Court: - The matter was brought under certificate ofurgency and it is for this reason that the Hon. Judge incharge set it for hearing today. Unfortunately, he is atMoshi attending the C.J. who has come for officialduties.

Mr. Maro: - If you set the hearing on 24/7/1992 Iundertake that the factory will not be commissionedon this date i.e. until the finalization of this application.

Order: - Counter affidavit by 22/7/1992. Hearing on24/7/1992. Applicants to be notified.

Sgd:S. J. LawenaAg. District Registrar.2/7/1992.

The record shows that on 3/7/1992 notices of hearingfor 24/7/1992 were issued for service on the applicants’counsel, but none of them was returned to the court asproof that the same were served. The respondents filedtheir counter affidavit on 22/7/1992 as was ordered bythe Acting District Registrar. There is no proof fromthe record as to the date and time the applicants’counsel were served with the said counter affidavit inorder to read it through and prepare themselves toanswer it on the 24/7/1992. The applicants’ counselhave submitted that they were served with the saidcounter affidavit late on 23/7/1992, less than a daybefore the date of hearing. This submission cannot andhad not been refuted in anyway by counsel for therespondents. So this Court takes it as a fact that theapplicants’ counsel were served with the respondents’affidavit late on 23/7/1992, less than a day before thedate of hearing on 24/7/1992 at 9.00 a.m. This Courtis legally bound to consider and decide whetherthe time within which the applicants were served withthe counter affidavit was sufficient time to enable theapplicants’ counsel to read and digest the said counteraffidavit, and thereafter prepare themselves to answerthe issues raised in that document during the hearingof the application. To me this is the crux of the matterwhich is very much tied to the proceeding and ordermade on 2/7/1992 by Mr. Lawena the then ActingDistrict Registrar.

Mr. Shayo for the applicants submitted that therespondent counter affidavit contains severaltechnical issues which entail research and consultationswith experts on these issues. Such consultations willinvariably require some time to achieve. Thereafterthe applicants’ counsel will have to consult betweenthemselves on the legal aspects in respect of the issues

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respondents are going to keep on incurring daily as aresult of the adjournment of this application. Mr.Lobulu prayed the applicant be ordered to deposit intothe court an amount equivalent to the daily loss to beincurred by the respondents at the plant when theapplication will stand adjourned on account of theapplicant’s application. Mr. Lobulu cited order 37 Rule2 (2) Civil Procedure Code 1966 as empowering theCourt to make an order requiring the applicant to makedeposit for loss on the respondents due to adjournmentof the application. He also cited Snel’s principles ofEquity, 24th Edition by Megarry and Baker at P. 591and Transgem Trust V. Tanzania Zoisite Corp. LTD1968 HCD No. 501.

On the applicant’ s counsel’s application for an extra,copy of the counter affidavit, Mr. Lobulu submittedthat so long as there is only one applicant cited in thisapplication, the single copy of the counter affidavitwhich the respondents have filed and served on theapplicant is sufficient. If the applicant wants an extracopy of the counter affidavit, that is only for hisconvience and he is bound to pay for it.

Mr. Lobulu lastly prayed that he be granted permissionby the Court to argue the preliminary point of objectioncontained in the counter affidavit to the effect that thereis no main suit properly filed before this Court tosustain this application.

In reply, Mr. Shayo reiterated his reasons foradjournment of the application. He stressed that theapplicant wishes to file a reply to the counter affidavitand he can do so only if the hearing of the applicationis adjourned. As to the costs incurred by three principalofficers of the defendant's in their travel from Dar esSalaam to the Court to attend the hearing of thisapplication, Mr. Shayo submitted that that was notnecessary because the said officers were not summonedto perform any function connected with the hearingand disposal of the application.

Mr. Shayo reiterated his prayer for a temporaryinjuction to maintain the status quo at the plant. Heurged that the temporary injunction is necessaryto restrain the respondent from commissioning theirplant, which act, if done, will defeat the purpose bothof this application and the main suit.

With regard to the respondents’ prayer that theapplicant should deposit with the court an amount equalto the amount the respondents will lose daily asexpenditure at the plant in case the hearing of theapplication was adjourned, Mr. Shayo vehementlyobjected to that prayer that if the same were granted,

it would punish the plaintiffs, who are poor peasants,in the main suit. Moreover, Mr. Shayo argued, anorder for a deposit to be made into the court by theapplicant will be improper and unjust at this stagewhere the applicant is entitled to apply for leave tofile a reply to the counter affidavit. The applicant onbehalf of the rest of the plaintiffs in the main suit isseeking for leave of this court to file a reply to thecounter affidavit filed by the respondents.

On the question that the applicant is not entitled totwo sets of counter affidavits, and in particular, thedocuments annexed thereto, Mr. Shayo urged thatsince the applicant is represented by two advocates,each of whom hails from a different firm of Advocates,then each of those advocates is entitled to be servedwith a separate copy of the counter affidavit. Moreoverthe applicant represents 627 plaintiffs who are alsoapplicants in this application; this situation aloneentitles the applicant to be served with extra copies ofthe counter affidavit.

I have carefully considered the submissions of Counselfor both parties on the sole question that this Court iscalled upon to resolve at this stage, that is, whether ornot the applicant’s application for adjournment should be granted.

Before reverting to and resolving this question, I feelI have a legal duty to say a few words on the procedurethat was adopted by the Acting District Registrar incalling the record on 24/6/1992 in the absence of theparties, and with any application from anyone of themand fixing another hearing date on 2/7/1992 insteadof 24/7/1992 which had been initially fixed. Althoughan order was made that the parties be notified, therecord shows that no notice was ever issued and servedin that direction. In humble view the Court had intendedto change the date of hearing suo mot from 24/7/1992to 2/7/-1992. It should have first issued notice to theparties to appear before it in order to fix the applicationfor hearing on 2/7/1992.

Then there is the error that transpired on 2/7/1992 whenthe application had been fixed obviouslyfor hearing before a judge. Instead, the application wentfor hearing before the Acting District Registrar. Theapplicant was absent and there was no proof he wasserved. On the other hand, the respondents appearedby an advocate Mr. Maro from TLC. It is not clearfrom the record as earlier pointed out how TLC gotthe information that the hearing date had been changedfrom 24/7/1992 to 2/7/1992. All the same, the actingDistrict Registrar had an application from Mr. Maroin which he applied for leave and time to file a counter

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affidavit. The Acting District Registrar heard theapplication and finally granted it. He made an orderfor the counter affidavit to be filed on 22/7/1992 and hearing of the application on 24/7/1992 and that the applicants be notified. I have asked my self the following questions:

1) Was it in order for Mr. Maro to make an applicationto file a counter affidavit in the absence of theapplicant and his advocates?

2) Was, the Acting District Registrar empoweredunder the law to entertain the application, and inparticular in the absence of the other party ? Thequestions may at first glance appear to be simpleand trivial. However, I am of the humble butconsidered view that these questions are vital, sincethey concern judicial acts which the Acting DistrictRegistrar performed. Any judicial act can bevalid only when the same is done under an enablingsection of the law which confers jurisdiction onthe judicial officer to perform the act in question.

In resolving these questions which counsel for theparties did not aver to during the hearing of thisapplication on preliminary points, I have had recourse to Order XLIII Rules I and 2 which deal With the powersof Registrars and applications respectively. I have notbeen able to read anything in these rules whichempowers an Acting District Registrar or the DistrictRegistrar to hear and determine an application of thenature which Mr. Maro made orally from the bar on2/7/1992 when the application had been fixed forhearing before a judge. In my humble but consideredview, it was improper for the Acting District Registrarto have entertained Mr. Maro’s application whichapplication ought to have been entertained by a judgein chambers if it was so fixed. Moreover, assumingthe Acting District Registrar was empowered by lawto entertain the said application, it was still not proposedfor him to have entertained that application in theabsence of the other party who had not at all beenserved.

What is the resultant effect of these errors? Are theycurable? The test whether an error in a case is curableor not is whether the said error had occasioned a failureof justice or not. I am of the considered view thatthese errors did not occasion failure of Justice on theapplicant because the applicant who is ably representedby counsel has not complained about these errors. Moreso the applicant’s counsel acted on the order of 2/7/1992 that resulted from those exparte proceedings. So,in the circumstances, I find that the said errors arecurable. This means the respondents’ counter affidavit

is properly before this Court and it is sustained.However, this is far from saying that the procedurewhich the Acting District Registrar adopted on 2/7/1992 is proper and that the same should take root inthis registrar, far from it.

Having made my observations and directions on whatI consider to be material errors that were perpetratedin this application, I now consider and determine thecrucial question of adjournment of this application forhearing on another date for reasons which Mr. Shayohas advanced in his submission.

Indeed, I quite agree with Mr. Shayo, learned counselfor the applicants that the counter affidavit filed inthis application by the respondents is quite full of technical issues which call forconcentration and consultation both on the legal aspectand on technical expertise. The counter affidavitcontains 41 paragraphs with several documentsannexed thereto. As already stated, the applicant’scounsel did not know that the respondents had filed acounter affidavit in opposition to the chamberapplication. The applicant’s counsel was not notifiedand was not in court on 2/7/1992 when Mr. Maroapplied to file the counter affidavit. Moreover, quiteextraordinarily, the order directed Mr. Maro to file thecounter affidavit just a day before the date of hearing.The Acting District Registrar must have acted inoblivion of the law that the counter affidavit had to beserved on the applicant within sufficient time to enablehim to read and understand it and prepare himself toanswer the issues raised therein. It is admitted that thesaid counter affidavit was served on the applicant’scounsel on 23/7/1992, less than a day before the dateof hearing on 24/7/1992.

It is clear under the circumstances that the said counteraffidavit was not served within sufficient time whichis required under the law to enable the applicant toprepare himself to answer that counter affidavit. Incourt practice, where no objection is raised, anypleadings and other documents in a suit should beserved on the other party not less than seven clear daysfrom the date of hearing. So, I uphold Mr. Shayo’ssubmission that the counter affidavit was not servedon him and his co-advocate within reasonabletime to enable them to prepare themselvesto make a reply either orally or in writingon that counter affidavit on 24/7/1992. That time wasabsurdly too short for the anticipated reply.

Moreover, I also agree with Mr. Shayo that theapplicant is entitled to apply to file a reply to thecounter affidavit. The court will invariably grant an

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application to file a reply to a counter affidavit, providedthat the application is made to the court withoutunreasonable delay and before the date of hearing. Inthis application, the applicant was served with thecounter affidavit within so short a time that he had noopportunity to file a reply before the date of hearing.So the applicant can not be held to have delayed tomake his application to file a reply to the counteraffidavit.

These two findings entitle the applicant to be accordedan adjournment firstly to study the counter affidavit,and secondly prepare and file a reply thereto.

As to the question of status quo being maintained atthe plant, it is clear from the proceedings that wereconducted on 2/7/1992 before the Acting DistrictRegistrar that Mr. Maro on behalf of the respondentspromised that the respondent/ defendants will notcommission their plant until this application is disposedof. That undertaking still sustains. The court makes anorder in terms with that undertaking that therespondents will not commission their plant before thisapplication is heard and determined. However Mr.Shayo submitted to this court that the respondents maygo on with construction of the plant if they so wishand in case the order for permanent injunction isultimately given. This phenomenon has been prevailingbefore and after the inception of this matter in court.So the respondents are still at liberty to continue withconstruction of the plant at their own risk as Mr. Shayoput it.

With regard to the prayer for extra copies of the counteraffidavit made by Mr. Shayo, I am of the consideredview that in the circumstances of this application,whereby only one person represents the otherapplicants, the respondents are not legally bound tosupply an extra copy of the counter affidavit to theapplicant's counsel. The applicants counsel are at libertyto make Photostat copies from the copy of the counteraffidavit which has been served on them so that eachone of them gets a copy for their convenience. So Idismiss this prayer or application as unwarranted.

With regard to Mr. Lobulu’s prayer for cost of theadjournment of this application, which adjournment hasbeen applied for by the applicant’s counsel, I find thatthe applicant is not at fault in applying for theadjournment. It is the court which is to blame for havingaffected service of the counter affidavit on theapplicant’s counsel at short notice and for having filedthe application for hearing in the absence of theapplicant without first ascertaining whether or not heintended to file a reply to counter affidavit in which

case each party will bear the costs of today’sadjournment. Consequently Mr. Lobulu’s applicationthat the applicant be ordered to deposit an amount equalto the daily loss suffered by the respondents at the plantis not granted.

Then there is the application which Mr. Lobulu madethat he should be permitted to argue a preliminary pointthat there is no substantive suit properly filed beforethis court to sustain this application. I have seriouslyconsidered this application. I have considered that thisapplication, which is seeking for a temporaryinjunction against the respondents is very key to therelief sought in the main suit i.e. Civ. Case. No. 39/92which the applicants have filed against the respondents.The relief in that suit is an order for permanentinjunction. It is my considered view that if I permitMr. Lobulu to argue his preliminary point and a1sohear a reply from the applicants, I will inevitably makea decision which will prejudice and preempt thedecision in the main suit. For this specific reason, Ifind in the interest of justice, that I should refrain fromhearing Mr. Lobulu’s preliminary point of objection.

Lastly, I feel obliged to make an observation and asuggestion just in passing, about how I personally lookat this application. I find this application oblique andirregular in the sense that it has been filed under orderI rule 8(1) of the C.P.C., 1966. A single person, oneChristopher Aikawo Shayo, has filed the applicationin a representative capacity on behalf of 627 otherplaintiffs. I am aware that this same applicant has filedMisc. Civ. Application No. 127/92 for leave of this courtto permit him to sue or to file a suit in this court onbehalf of the other 627 plaintiffs. The said applicationwas filed after this application wasfiled. This application is Misc. Civ. ApplicationNo.126/92. The application for leave has been heardbut has not yet been granted. In my considered view,this application would have been filed only after theapplication for leave had been filed, heard and grantedso that the applicant herein named would then havethe Locus Standi in this application for a temporaryinjunction. Although I have not heard submissionson this point from counsel for the parties yet I tend tothink that at the moment the applicant in this applicationhas no Locus Standi. The legal point tends to militateagainst this application. Although I have granted theapplicants’ application for adjournment of the hearingof this application to another date and to file a replyto the counter affidavit, in the ends of justice, I amduty bound to suggest to the applicants’ counsel towithdraw this application and refile it later when, if at

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all, the application for leave to represent the other 627plaintiffs is granted. The position would have beendifferent if this application had been filed after theapplication for leave was granted. The way I view thisapplication is that it presupposes that Misc. Civ.Application No. 127/92 will be granted as a matter ofcourse.

Having made this observation and suggestion, I grantthe application for adjournment of the hearing toanother date to be fixed by the District Registrar.Should the applicant be adamant that this applicationgo to hearing as filed, I hearby give him ten (10) dayswithin which to file his reply to the counter affidavit.This means, he should file the reply to the counteraffidavit on or before 6th August 1992 on which datethe application shall be mentioned before the DistrictRegistrar who shall fix a date for hearing.

It is ordered accordingly.

M.D. NCHALLA,JUDGE.27/7/1992.

27/7/1992Coram: M.D. Nchalla, J.For Applicants: Shayo and Ngimaryo.For Respondents: Mr. Mihayo and Lobulu.C.C. Meriod.

Court: Ruling delivered in open court at Arusha inthe presence of counsel for both parties, this the 27thday of July, 1992. Right of appeal explained.

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RULING

This was an application for extension of time on a stayof extension in a local battle that has pitched the CityCouncil of Dar-es-Salaam and the residents of Tabata,a city suburb, since 1988.

On 1st September, 1989, the residents of Tabataobtained a judgment from this court in which the CityCouncil was ordered inter alia, to cease using theTabata area for dumping garbage collected in the cityand to construct a dumping ground at a site or placewhere the dumping activity would not pose a dangerto life. This judgment was granted ex-parte, the CityCouncil having become dialatory in filing a defense.On the following day, the council, through its solicitor,filed an application for review of the judgment andanother application for staying execution of thejudgment.

On 7th September, the city solicitor followed up theseapplications by filing a notice of appeal to what wastermed “THE COURT OF APPEAL OF TANZANIA”.

The applications came up for hearing on 26th

September and on that day the application for reviewand the notice of appeal (which were irreconcilable,any way), were withdrawn. The city solicitor who wasthen Mr. Joseph Mbuna, was then heard on theapplication for stay of execution. He informed the courtthat the council had ear-marked a dumping site atMbagala since 1984 and that it would be a minimumof two years to move to that site. He further informedthe court that in the interim, the council had alreadycommenced establishing three mini-dumps in the threedistricts of the city and that the exercise would take aminimum of one year. He therefore prayed forexecution of judgment to be stayed for one year. Theapplication was hotly contested by Mr. Maira whoappeared for the Tabata residents, but in the end it wasgranted, precisely in appreciation of the promisingrepresentations by Mr. Mbuna. The extension was toexpire on 31st August 1990. On 28th August, 1990 threedays before the extension was to expire, Mr. Mbuna

filed an application for a further extension of one year.This time he told the court that a dumping site hadbeen obtained at Kunduchi Mtongani. He made nofurther mention of the Mbagala site be it in his affidavitor in his submissions in court apart from the generalstatement that three dumping sites had been identifiedbut had been found unsuitable after technicalevaluation. He went on to say that specializedequipment was needed to prepare the KunduchiMtongoni site and that this had been ordered fromJapan. He produced a proforma invoice to that effectand asserted that the equipment had already been paidfor.

He said that it would take six months for the equipmentto arrive at Dar-es- Salaam and another six months forthe same to be cleared, installed and tested hence theprayer for a one-year extension. This application wassimilarly resisted by Mr. Maira who also observed that,“There is no law, which supports the application” Hedid not elaborate.

The court reluctantly granted the extension, to expireon 31st August,1991. On 30th August, 1991 just a daybefore the extension was to expire, the city solicitornow Mr. George Kakoti, filed the present application,this time praying for an extension of three months. Atthe hearing of the application three days ago, heunilaterally reduced the period of two months. He alsohad a new story. The development of the KunduchiMtongani site had fallen out due to lack of funding bythe Central Government. On 28th August,the council’s officials sought to take over asight at Mbagala Kizuiani but neighboring residentsand excavators vehemently obstructed them. At ameeting held the following day with representativesof the residents, it was agreed that the dumping site beshifted to Mbagala Kilungule. Mr. Kakoti said it wouldrequire construction of a 1.3 km road to reach theagreed site. He also said that the council had alreadyentered into an agreement with a contractor to do thejob. In the premises, he prayed for two monthsextension from 1st September.

JOSEPH D. KESSY AND OTHERS

VERSUS

THE CITY COUNCIL OF DAR ES SALAAM

(Civil Case No. 29 of 1988) High Court of Tanzania at Dar es Salaam (Lugakingira, J., 1991)

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Mr. Kaira was again at head to resist the application.Apart from his general observations on merit, hesubmitted that the application was incompetent andought to be dismissed on two grounds. First heobserved that it was brought under S. 95, the CivilProcedure Code while there were specific provisionsfor this type of application and he named these as 0.21,r.24 and 0.39, r.5 of the code. Secondly he submittedthat having regard to the circumstances of this case, itwas not open for the court to stay the operation of theinjunction. He argued that the court was in judgmentand had no power to vacate it except a higher court ofappeal. Turning to the merits of the application, Mr.Maira observed that these have been inconsistentrepresentations on behalf of the council since 1989,such that it was risky to believe the latest story. Headded, citing Robert Gwyrafi D.C. (1899) ch.608 thathis clients had established that the council wasviolating their rights and submitted that the court wasbound to protect his clients against violation, and hethought that the council was being lackadaisical in itsefforts to construct the access road for there wereseveral public and private firms which were taking sandfrom the vicinity of the proposed site and which couldbe mobilized to work on the road. In so far as I couldgather, Mr. Kakoti in reply, touched on the appropriateprovisions applicable in these applications but he didnot volunteer any opinion on jurisdiction of court tostay injunction. Generally, he said that the CityCouncil had a statutory authority to ensure the healthof all the residents of Dar-es-salaam and argued thatin the exercise of this authority, the interests of specificgroups had to be subordinated, limited groups bydumping garbage in there midst rather than leave it torot all over the city. I took time to consider thesearguments some of which are significant in theirnovelty. I think it is logical to begin with the basicissues raised by Mr. Maira.

Mr. Maira’s first argument was that the applicationwas wrongly brought under S.95 of the Civil ProcedureCode and should have been brought under 0.1, r.24 and0.39, r.5 thereof, indeed in his main submissions andin reply to Mr. Maira, Mr. Kakoti suggested that theapplication was brought under S.95 and sought tojustify that position. I find this slightly perplexing. Isay as because the chamber summons drawn and filedby Mr. Kakoti states that the application was beingmade under S.63 (e), 93, and 95 of the civil procedurecode: but judging by his unequivocal submission onthe subject, it is more than apparent that he abandonedS.68(e) and 93.

Is it true that stay of execution and extension of stayare not specifically provided for? I do not think so.

Mr. Maira was certainly incorrect when he referredto 0.21, r.24 and 0.39, Rule 5 . The former applies tostay of execution by a court to which a decree hasbeen sent as opposed to the court passing the decreewhile with the later provisions, a distinction has to bemade between 5(1) and 5(2). The former applies tostay of execution by an appellate court while the latteris the proper provision of the court which passed thedecree. On the other hand, extension of time is indeedprovided for under S.93 of the code. The position inlaw is that inherent jurisdiction under S.93 of the Codeis exercisable subject to the rule that if the Codedoes contain specific provisions which would meet thenecessities of the case in question, such provisionsshould be followed and the inherent jurisdiction shouldnot be invoked. A court cannot make use of the specialprovisions of S.95 where the applicant has his remedyprovided elsewhere in the code and has neglected toavail himself of it. In Joom V. Bhambia (1967), EA, 326, in which ironically was cited to me by Mr.Kakoti this court set aside an order for extension ofstay of execution which was made under our S.95. Itfollows in my view that application before me mustsimilarly fail as it was brought under S.95 whilespecific provisions governed the matter.

Mr. Maira’s other point was that the court had nojurisdiction to stay the injunction. I think with respectthat there is merit even in this point and I propose toapproach it more broadly. First, the entire injunctionin the instant case constituted the judgment and decree.The execution of an injunction such as this is theoperation of the injunction itself. Therefore to suspendthe operation of such an injunction is in effect to raiseit. Execution of some injunctions is thus different fromsay, execution of a monetary judgment where thedecree holder may seek satisfaction by attachment andsale of some property belonging to the judgment debtor.

In the latter case, the attachment may be stayed withoutdoing harm to the judgment for payment. It is not sowith some injunctions where to stay execution wouldpractically mean to vacate the judgment. I thinktherefore that there is need for prudence when a courtembarks on staying an injunction, lest as in the instantcase, it should result in licensing the very evils thatthe judgment is supposed to cure. Secondly, it is notedthat in the instant case the court finally disposed ofthe suit and was no longer seized of any matter thereinas of 1 September,1989. The ruling and the decree basedthereon do not leave anything for future settlement but

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are immediately effective. In other words, theinjunction was immediately operative the moment adecree was drawn and signed. In my view the courtwas from that moment functus officio and it was nolonger in its power to turn back and suspend injunction three weeks after the event. Only an appellate court could only exercise such power. This matter is dealt with in MULLA (14th Edn.) where

it is said on page 771:

"…it is only when the proceeding is still pending andmet finally disposed of, that the court has jurisdictionto grant extension of time… so where a final decreeterminating the action has been passed, the court hasno power to extend the period fixed there in. Inillustration of this point, it is stated that when a decreehas been passed directing a tenant to pay arrears ofrent, the court passing the decree has thereafter nopower to grant extension of time for payment, becausethe court has become functus officio and is no longerseized of the matter. And so it should be on the factsof this case. Once the court drew the decree onSeptember 1st 1989, that was the end of the road. Ihave therefore to agree with Mr. Maira that even thisapplication is incompetent and I do not find my self-privileged to follow the previous examples.

If I am held wrong in therefore going, I still don’t seethe chances of the application even on merits. I willpoint out at this juncture that the basis of the suit wasnot the mere act of dumping garbage at Tabata. Rather,it was the methodology employed in that activity whichmethodology was potentially hazardous. Para 4 of theplaint stated and I quote:

“That the continued use of the Tabata areaposes real danger to the lives of the plaintiffsand other users of the port access road due topollution of the air. Heavy smoke blocks themotorists using the road and causes motoraccidents. Unscrupulous traders scoop the areaand recover grain and other stuff, which is unfitfor human consumption.”

What happens as stated in para.3 of the plaint, are thosecouncil agents upon tipping the garbage proceed toset it on fire. Heavy smoke rises there from and driftsacross Mandela express way before engulfing theTabata residential suburb. As sighted at the beginningthere was no defense to the suit hence no part of theplaint was controverted. But more specifically the citysolicitors have consistently acknowledged before thiscourt as Mr. Kakoti did at the hearing of this applicationthat garbage dumping at Tabata was in deed a healthhazard to the neighborhood. The pollution and the

dangers posed by the activity are thereforeacknowledged. In Mr. Katoti’s argument, it is a lesserevil to pollute and endanger lives at Tabata than to doso for the whole city hence the supposed rationale ofthe application.

But Mr. Kakoki’s argument also seems to proceed onthe promise that the council has statutory authority totake all measures as would safeguard public health. Ineffect, he seems to say that an injunction shouldtherefore not issue to restrain the council in the exerciseof it’s statutory authority. The argument is certainlyattractive but it is not available as the council did notdefend the suit and the injunction is already granted.But if it is necessary to respond to the point where Iwould observe that Mr. Kakoti did not seek to stay andI am aware that the council has no latitude in theexercise of its statutory authority. There is authorityfor the preposition that where a latitude, a discretionis left to the person clothed with authority, that personmust not, in exercising it, create a nuisance. InMetropolitan Asylum District v. Hill (1881) 6 app.Cas. 1983, a local authority was given power to erectsmallpox hospital the power being faculative and inno way compulsory. The local authority in exercisingit created a hospital in a place where the infectionconstituted a source of danger to their neighborhood.They were restrained by injunction from continuingto use it any longer to be a source of danger to theirneighborhood. They were restrained by injunction fromthe fact that an injunction will issue to restrain a localauthority.

There is another dimension to these propositions, thecriminal dimension. What the council has been doingat Tabata does not only constitute a tort but is alsocriminal. Section 185 of the penal code makes it anoffence punishable with imprisonment for any personvoluntarily to vitiate the atmosphere in any place soas to make it noxious to the health of persons in generaldwelling or carrying on business in theneighbourhood or passing along a public way.In coming to court seeking to be permittedto continue using the Tabatasite the way it has been doing, the council is virtuallyasking for a license to contravene the law. I am notaware of any authority and non was cited to me whichauthorizes a court of law to sanction criminal activity.I hold on the contrary that a court can not authorize anoffence. In bringing this application, it was claimedthat the council was seeking justice. Justice in this casein wholly on the side of Tabata residents and the councilin effect came to court to enlist the court's assistance inperpetuating an injustice. Ironically, the duty of thecourt is to protect the individual from the excess of

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executive power and in this duty it should not be seento fail. In the Roberts case cited earlier, it was stated, and I agree that:

"How’s the court to deal with a man who says, “I admitI have no right to do this but I intend to go on doing itall the same”? If he is infringing the plaintiffs' rights,it is the duty of the court to protect the plaintiff. I know of no more important duty of the court toobserve than its power to hold public bodies within their limits. The moment bodies exceed their rights, they do so to the injury and apprehension of private individuals and these persons are entitled to be protected from excesses of operations of pubic bodies.

In sum, I am led to the inevitable conclusion that evenfrom the point of view of merits, it would be injudicious,illegal and oppressive to yield to this application and

grant the extension prayed for. It certainly should beworrying to the city further and probably puzzling toothers as to what happens to the city garbage in thelight of these pronouncements. I am personallyfortunate in being spared of any tribulation. I think werespect that if the council with all the willingcontractors at Mbagala can not make up a track of 1.3km roughly 1300 paces in a day or two, people willhave reason to check whether there is a city councilworth the name. For all I have endeavored to state Idismiss the application with costs.

K.S.K. LUGAKINGIRAJUDGE

DAR ES SALAAM.9TH SEPTEMBER 1991.

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RULING

The application by FESTO BALEGELE and 794others against the Dar es Salaam City Council madeunder s. 2(2) of the Judicature and Application of LawsOrdinance, Cap. 453; the Law Reform (Fatal Accidentsand Miscellaneous Provisions) Ordinance, Cap. 560as amended by the Law Reform (Fatal Accidents andMiscellaneous Provisions) Ordinance (Amendment)Act, 1968 and S. 95 of the Civil Procedure Code, 1966is for the following orders:

1. an Order of certiorari to remove to the High Courtand quash the decision of the Respondent to dumpthe City’s waste and refuse at Kunduchi Mtongani;

2. an Order of Prohibition to prohibit the Respondentfrom continuing to carry out its decision to useKunduchi - Mtongani as a refuge dumping site;

3. an Order of Mandamus to direct the Respondentto discharge its function properly and accordingto law by establishing an appropriate refusedumping site and using it; and

4. an Order that the costs of this Application be metby the Respondent.

The application is supported by a thirty three (33)paragraphed affidavit sworn by the said FESTOBALEGELE and opposed by a twenty four (24)paragraphed counter affidavit sworn by ALOYSIUSMUJULIZI SSELUNKUUMA, a solicitor in theemployment of the respondent. In the counter affidavit,the respondent also gave notice that at the hearing ofthe application by Festo Balegele and 794 others, therespondent was going to raise a preliminary objectionon points of law. Paragraph 2 of the counter affidavitdetailed the nature of the preliminary objection onpoints of law to be raised. This was duly raised on thehearing date. Both Mr. Kakoti and Mr. Mujulizi argued

the respondent’s case on the raised preliminaryobjection. Mr. Maikusa replied for the applicants’.Briefly the raised preliminary objection was to theeffect that the application before the court wasmisconceived and thus qualified to be dismissed. Ireserved ruling; when 1 came to give it, it was to theeffect that the raised preliminary objection was withoutmerit. I dismissed and undertook to give my reasonsfor that decision in the final Order of the Court.

In the matter of an Application for Orders of Certiorari.Prohibition and Mandamus by Abdi Athumani and 9others Vs. The District Commissioner of TunduruDistrict, The District Executive Director of Tundurudistrict, the District Commissioner of Songea Districtand the District Executive Director of SongeaDistrict, consolidated in Miscellaneous Civil Causes No.2 and 3 of 1987 (Mtwara Registry) unreported), this,Court (Rubama. J.) had addressed itself on the issuethat had been raised by the respondent as a preliminarypoint in the matter now before the court. I still holdthat finding valid and follow it in this application.

In the case of Abdi Athumani and 9 Others (supra),theapplicants had sought and obtained Orders of CertiorariProhibition and Mandamus. Some of them had beenrefused trading licences by the appropriate licencingauthorities in accordance with the BusinessLicencing Act No. 25 of 1972. Eight of the applicantshad been served with Removal Order under theTownship (Removal of Undesirable Persons)Ordinance. It stated:

“ In entertaining these applications by the tenapplicants, the Court has usurped no powers.This court has had powers to entertain suchapplications for ages: see Northern TanzaniaFarmers’ Cooperative SocietyVs.Shellukindo 1978 LET n. 36. This court, acreature of statute in entertaining suchapplications, performs for the benefit of the

FESTO BALEGELE AND 794 OTHERS

VERSUS

DAR es SALAAM CITY COUNCIL

(Misc Civil Cause No. 90 of 1991)

High Court of Tanzania at Dar es Salaam (Justice Bubama. S):January 3rd 1991

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people. As was stated by Brett. L J. in R. v.Local Government Board (1982) 10 QBD 309at 321 that:

“wherever the legislature entrusts to any bodyof persons other than its superior courts thepower of imposing an obligation uponindividuals, the courts ought to exercise aswidely as they can the power of controllingthose bodies.”

It is one of High Court’s duties to exercise supervisorypowers on bodies other than a superior court that areentrusted by Parliament to take decisions that affectthe rights of the people to ensure that these bodiesperform within the limits set to them by Parliament.This ensures consistent application of the country’sentrenched principles of freedom and justice by theGovernment agencies. Parliament’s decisionensures avoidance of this Republic’s duties beingexecuted on people’s whims where people are reducedto numbers without any personal regard to hearship[sic] of the very people said by the official to be serving.These supervisory powers ensure existence of tangiblevalues like justice, truth, consistency within which areembedded elements such as compassion anddedication. The grant by the Parliament of thesesupervisory powers ensures that expediency or “mightis right” forces that are always inconsistent and withoutpermanency are eliminated. In entertaining suchapplications, the High Court does not set itself toembarrass or belittle the Government or its Agenciesin order for itself to look more important in the eyesof the people. As stated, the supervisory powers havebeen granted to the High Court by the Governmentand common sense dictates that Government wouldnot have put itself in such untenable position.”

The following facts are not in dispute:

1. that Kunduchi Mtongani is within the area ofjurisdiction of the Dar es Salaam City Council;

2. that Kunduchi - Mtongani is zoned in therespondent’s Master Plan as a residential area;

3. that the applicants reside at Kunduchi Mtongani;

4. that the respondent has been dumping the City’scollected refuse and waste at Kunduchi Mtonganiinstead of at one of the five sites designatedin the City’s Master Plan for dumping thecollected City’s refuse and waste effectiveSeptember, 1991 following this Court's

order in Civil Case-299/88 (Dar es SalaamRegistry) in which the respondent was orderednot to dump refuse at Tabata;

5. that the dumped refuse and waste at KunduchiMtongani is presently burning and emanating muchsmoke covering a wide area;

6. that the dumped refuse and waste emanatesoffensive smell and has attracted swarms of flies.

Mr. Mwaikusa correctly submitted that refusecollection and its disposal was one of the respondent’smandatory duties under the Local Government (UrbanAuthorities) Act, 1982. He further correctly submittedthat the respondent was required by law to perform itsstatutory duties lawfully. Mr. Mwaikusa submittedhowever that the respondent in disposing of thecollected city’s refuse and waste at Kunduchi Mtonganiwas thereby executing its statutory duty unlawfully.Elaborating on this submission, Mr. Mwaikusa quotedto the court several authorities all of which are ofpersuasive effect. He submitted that the action ofdumping the City’s collected refuse and waste atKunduchi Mtongani was ultra vires the Act as the Dares Salaam City Council, the respondent:

1. had not taken into consideration the relevance incoming to its decision in Associated ProvincialPicture Houses Limited v. WednesburyCooperation(1948) IKB 223. Mr. Mwaikusaargued that the relevant factors that the respondentshould have considered in selecting KunduchiMtongani as the City’s collected refuse and wastedumping area were the general land developmentplan of the area; that Kunduchi Mtongani waszoned a residential area: that Kunduchi Mtonganiwas not within one of five sites zoned for garbagedisposal;

2. choice of the area was without plausiblejustification. Mr. Mwaikusa pointed out that itwas one of the duties of the respondents to enforceas provided by ss.35 and 36 of the Town andCountry Planning Ordinance, Cap. 378 landdevelopment plan. The counsel submitted that therespondent was dumping refuse at an area markedresidential and where in fact people are residingthereby posing a health hazard and nuisance tothe residents. By this decision, the counsel wenton to submit that the place which is at any rate toosmall for the requirements of the respondent hasbeen an attraction of swarms of flies and isoffensively smelly thereby making life of the

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residents extremely unbearable. To compound thisstate, the refuse has been put on fire emanatingsmoke.

Mr. Mwaikusa concluded that KunduchiMtongani as a refuse dumping site was too smallfor the purpose and the methods of the disposalof the refuse primitive [sic). The place has beenturned into a health hazard and a nuisance to itsresidents. The decision of the respondent, Mr.Mwaikusa went on to submit. Looked atobjectively, was devoid of any plausiblejustification that could have made any reasonablebody of persons reach it: Bromley LondonBorough Council Vs. London Council andAnother ( 1982) I All ER 129.

3. Decision of the choice of the area appears to havebeen reached through outside dictation. Mr.Mwaikusa submitted that it appeared therespondent was dictated by the CentralGovernment on the choice of Kunduchi Mtonganias the City’s refuse dumping place. As theenabling Act does not permit the respondent toabdicate its powers in favour or another body, Mr.Mwaikusa argued the act of the respondent wasultra vires the Act. H. Lavender & Son Ltd. Vs.Minister of Housing and Local Government(1970) 2 All ER 871.

Mr. Mwaikusa further submitted that the applicants,residents of Kunduchi Mtongani were “aggrieved” andthus with locus standi to apply for the orders ofcertiorari and prohibition. Regina Vs. LiverpoolCorporation. Exparte Liverpool Taxi Fleet Operators’Association and Another (1972) 2 Q.B. at 299.

Mr. Mwaikusa lastly prayed for an order of Mandamusby requiring of the respondent (i) stoppage of thenuisance it was causing, (ii) compliance with thisCourt’s Order issued in the case of Joseph D. Kessyand Others Vs. The City Council of Dar es SalaamCivil, Case No. 299 of 1988 (Dar es Salaam Registry)(unreported), (iii) compliance with the landdevelopment plan by selecting one of the five sitesdesignated for the City’s disposal of collected refuseand waste as shown in the City’s Master Plan.

Mr. Kakoti, the respondent’s solicitor, submitted thatthe respondent in disposing of refuse at KunduchiMtongani is performing a statutory duty lawfully. Inland filling the abandoned stone quarries at KunduchiMtongani, the respondents are “reconditioning” the land

through sanitary land filling. This action was not ultravires the Act. As for the sought order of Mandamus,by Mr. Kikoti submitted that the applicants had notcomplied with the conditions precedent for the issue ofthe Order: Lakaru v. Town Director (Arusha) (1980TLR 326 (Maganga, J.).

On the submission by Mr. Mwaikusa that therespondent appeared to be acting on dictation of theCentral Government thereby making its action ofdumping garbage at Kunduchi Mtongani ultra viresthe Act, Mr. Kakoti submitted that it was the duty ofthe Treasury of the Republic to provide such funds aswere adequate for the provision of public healthservice. On the order of prohibition, Mr. Mujulizisubmitted that it was not the intention of the respondentto dispose of refuse at Kunduchi Mtongani indefinitely.The decision to dispose of refuse in the area was atemporary one while the respondent was looking foran alternative place for dumping refuse. Mr.Mukulini prayed that the court exercise its discretionin favour of the respondent who would otherwise failto perform its statutory duty of refuse collection anddisposal.

I have above dealt with the issue of court’s jurisdictionin entertaining applications for orders of certiorari,prohibition and mandamus. It is best that I move on todeal with the issue of the locus standi of the applicantsas both Mr. Mwaikusa and Mr. Kakoti had touchedthe subject in their submissions. It is not disputed thatthe applicants are residents of Kunduchi Mtongani.This, taken together with the several facts that I haveoutlined above as not disputed make the applicantspersons “aggrieved by the decision of the respondent.I accept the affidavit of Festo Balegele that the residentsof Kunduchi Mtongani working through its Committeeof which the said Festo Balegele was the secretary andthrough its Member of Parliament had maderepresentations to the respondent, among others, to stopdumping the City’s collected refuse and waste atKunduchi Mtongani but to no avail. Theirrepresentations were not taken seriously.

Taking into consideration the submission of Mr.Mwaikusa on this issue, I find that the applicants resortto this court was in order. As this Court had saidin Abdi Athumani and others v. The DistrictCommissioner of Tunduru District, the DistrictExecutive Director of Tunduru District, The DistrictCommissioner of Songea District and The DistrictExecutive Director of Songea District (supra) at p.23 appropriately covers the applicants in the

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application under consideration, I find it fitting to adoptit here: .

“... applicants in resorting to this Court havedone nothing wrong or unconstitutional at all.For the applicants to have come to this Courtin search of justice have demonstrated theirbelief in the even handed administration ofjustice in this Republic. Every citizen has aright when he feels that the Government doesnot function within the orbit or limits dictatedby justice that it-the Government had set onitself to seek redress in courts of law. A moveby citizens such as these applicants have takenin search of what they consider as their rightsshould not be taken as intended to embarrassthe Government or its Agencies. It is in theinterest of all people of good will, reason,foresight, moderation and certainly theGovernment that one of its institutions clothedwith appropriate powers exists to reassure thepeople that the Republic’s admirable objectivesand their executions are intact.”

On consideration of the affidavit, counter affidavits andthe very elaborate and able submissions by the threecounsels, I am of the view that the respondent’s decisionof disposing the City’s refuse and waste at KunduchiMtongani was ultra vires the Local Government (UrbanAuthorities) Act, 1982 for the reasons submitted byMr. Mwaikusa which I accept. Further, the manner ofdisposal of the collected refuse and waste terminatesany possible claim by Mr. Kakoti that the respondentare in the process of reconditioning the disused stonequarries at Kunduchi Mtongani. By collecting refusefrom all over the City to dump it at Kunduchi Mtonganicontrary to the City’s Master Plant; that KunduchiMtongani is by this Master Plan not zoned as one ofthe five sites for refuse disposal but zoned residentialand that there are several people residing there to whoma nuisance has been created. The place has been madeintolerably smelly and dirty with flies all over and thedeposited refuse burning and emanating smoke. It is astatutory duty of ‘the City Council, the respondent, tostop nuisance and not to create it.

The submission by Mr. Kakoti that the respondent wasreconditioning the land at Kunduchi Mtongani standsno close examination. What the respondent is doingnow is not sanitary land filling as that process isunderstood but just refuse dumping. The dumpedrefuse attracts flies and emanates foul smell. Thedumped refuse which has been set on fire emanatessmoke which could be a source of danger to theresidents’ health. It is not material in this regard who

has set tire to the dumped refuse: it is its after effectsthat are of concern here. As to Mr. Mujulizi’s submissionthat the respondent intends to use Kunduchi Mtonganidump temporarily to give itself time to look for andlocate another site, I only have to state that therespondent has had a long time to sort out this matter.

By the very existence of five sites in its Master Planfor refuse disposal, the question of unpreparednessdoes not arise. But even if the Master Plan had notprovided for the possible sites for refuse dumping, Iwould still not find merit in the submission of Mr.Mujulizi on the issue of being given time to look for adumping site. Refuse collection and disposal as oneof the statutory duties of the respondent should havebeen given the priority treatment it deserved. Peoples’health and enjoyment of life are partly dependent onliving on healthy surroundings. I would further rejectMr. Mujulizi’s submission in this regard for the veryreasons stated by Lugakingira. J. in Joseph D. Kessyand Others Vs. The City Council (supra) at p. 15 to16 of the hand written ruling:

“1 will say at once that I have never heard itanywhere for a public authority, or even anindividual. to go to court and confidently seekfor permission to pollute the environment andendanger peoples’ lives regardless of theirnumber. Such wonders appear to bepeculiarly Tanzanian, but I regret to say thatit is not given to any court to grant such aprayer. Article. 14 of our Constitutionprovides that every person has a right to liveand to protection of his life by the society. Itis therefore a contradiction in terms and adenial of this basic right deliberately toexpose anybody’s life to danger or what iseminently monstrous to enlist the assistanceof the Court in this infringement:”

In view of the findings, this Court brings into courtthe decision of the respondent of dumping refuse atKunduchi Mtongani and quashes it. This court furtherprohibits the Dar es Salaam City Council fromcontinuing to carry out its decision of using KunduchiMtongani as a refuse dumping site. This court lastlyissues an order of mandamus and directs the Dar esSalaam City Council to discharge its function properlyand in accordance with the law by establishing anappropriate refuse dumping site and using it.

The respondent is to bear the costs of this application.Lastly I wish to highlight two points that this Court isnot here concerned with the wisdom or, indeed, thefairness of the respondent’s decision of selecting

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Kunduchi Mtongani as the City’s dumping place ofthe collected refuse and waste. All I am concerned withis the legality of that decision; was it within the powersthat the Republic’s Parliament has, conferred bylegislation to the Dar es Salaam City Council?Secondly, I wish to emphatically state that I have notcome to the above decision lightly. I bear in mind thatonly on 9th September 1991, the respondent wasordered by this Court to stop disposal of the City’srefuse at Tabata Dump. I take judicial notice of thedisorientation that order had caused to the respondent.but I can do nothing in this regard than to expressunderstanding of the feeling and then to apply the law.I can do no better than adopt the poetic and extremelyillustrative language of MAKAME, J. (as he then was)in the case of Republic v. Aines Doris Liundi (1980)TLR 38, 44, to express my view of how my hands aretied:

“... This necessary finding causes me personalanguish, but my powers and my interpretationrole are circumscribed by the law. I have to take-the law as it is, not as I might personally wish

it to be. I have my legal training andprofessional ethics to be true to my oath ofoffice to be faithful to and at the end of theday my conscience to live with. As WilIiamShakespeare puts it: ‘So does conscience makecowards of us aIl.’ ”

YAHYA RUBAMAJUDGE3/1191

Coram. RUBAMA. J .Mr. Maikusa assisted by Mr. Naasoro (or theapplicants, Mr. Kaketi assisted by MT Mujulizi (orthe respondents).

Ruling delivered.YAHYA RUBAMAJUDGE3.1.91

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Decided April 19TH 1972

Action by Membership Corporation for declaratoryjudgement that construction of a ski resort and recreation area in national game refuge and forest would contravene federal laws and preliminary and permanent injunctions restraining federal officials from approving or issuing permits for the project. The United States District Court for the Northern District of California granted a preliminary injunction and the defendants appealed.

The United States Court of Appeals, Ninth Circuit, 433F.2d 24, vacated the injunction and remanded the casewith directions, and certiorari was granted. TheSupreme Court, Mr. Justice Stewart, held that, inabsence of allegation that corporation or its memberswould be affected in any of their activities or pastimesby the proposed project, the corporation, whichclaimed special interest in conservation of natural gamerefuges and forests, lacked standing underAdministrative Procedure Act to maintain the action.

Affirmed

Mr. Justice Douglas, Mr. Justice Brennan and Mr.Justice Blackmun filed dissenting opinions. Mr. JusticePowell and Mr. Justice Rehnquist took no part inconsideration or decision of the case.

1. Action-13“Standing to sue” means that the party has sufficientstake in an otherwise justiciable controversy to obtainjudicial resolution of that controversy. See PublicationWords and Phrases for otherJudicial constructions anddefinitions.

2. Action-13Where a party does not rely on any specific statuteauthorizing invocation of judicial process, question ofhis standing to sue depends upon whether he hasalleged such personal stake in the outcome of the

controversy as to ensure that dispute sought to beadjudicated will be presented in an adversary contextand in a form historically viewed as capable of judicialresolution.

3. Administrative Law and Procedure-65Where Congress has authorized public officials toperform certain functions according to law and hasprovided by statute the judicial review of those actionsunder certain circumstances, inquiry as to standingmust begin with determination of whether statute inquestion authorizes review at the behest of the plaintiff.

4. Constitutional Law-55, 56Congress may not confer jurisdiction on federal courtsto render advisory opinions, to entertain friendly suitsor to resolve political questions, because suits of thatcharacter are inconsistent with judicial function underthe Constitution, but where dispute is otherwisejusticiable, question whether a litigant is proper partyto request an adjudication of particular issue is onewithin power of Congress to determine.U.S.C.A.Const.art.3 & 1 et seq.

5. Administrative Law and Procedure-668“Injury in fact” test for standing to sue underAdministrative Procedure Act requires more thaninjury to cognizable interest and requires that a partyseeking review be himself among the injured.5.U.S.C.A. & 702.

6.Administrative Law and Procedure-668Fact of economic injury is what gives a person standingto seek judicial review under a statute authorizingreview of federal agency action, but once review isproperly invoked, a person may argue the publicinterest in support of his claim that an agency has failed to comply with its statutory mandate.

7.Administrative Law and Procedure-665Organization may represent its injured members inproceeding for judicial review.

SIERRA CLUB

VERSUS

ROGERS C.B. MORTON, INDIVIDUALLY, AND AS SECRETARYOF THE INTERIOR OF THE UNITED STATES, ET AL

Supreme Court of the United States, 1972,

405 U.S. 727, 92 S.Ct., 1361

Nov. 17, 1971

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8. Administrative Law and Procedure-668Organization’s mere interest in a problem, no matterhow long standing the interest and no matter howqualified the organization is in evaluating the problem,is not sufficient by itself to render the organization“adversely affected” or “aggrieved” withAdministrative Procedure Act providing judicialreview for a person who suffers legal wrong because ofagency action, or who is adversely affected oraggrieved by agency action. 5 U.S.C.A. & 702. Seepublication Words and Phrases for other judicialconstructions and definitions.

9. Administrative Law and Procedure-668Requirement that a party seeking judicial review ofadministrative agency’s action must allege factsshowing that he himself adversely affected does notinsulate executive action from judicial review, nor doesit prevent any public interests from being protectedthrough judicial process, but serves as a rough attemptto make decision as to whether review will be sought inthe hands of those who have a direct stake in theoutcome. 5 U.S.C.A. & 702.

10. Administrative Law and Procedure-668Organizations or individuals are not entitled tovindicate their own value preferences through judicialprocess.

11. Administrative Law and Procedure-668Declaratory Judgement-292 In absence of allegationthat membership corporation or its members wouldbe affected in any of their activities or pastimes byproposed ski resort and recreation area in national gameand refuge and forest, the corporation, which claimedspecial interest in conservation of natural game refugesand forests, lacked standing under AdministrativeProcedure Act to maintain action for injunctive reliefand declaratory judgement that proposed developmentwould contravene federal laws. 5 U.S.C.A. 1, 41,43,45c 497, 688; Fed. Rules Civ. Proc. Rule 15, 28U.S.C.A

Syllaby* Petitioner, a membership corporation with“a special interest in the conservation and soundmaintenance of the national parks, game refuges, andforests of the country,” brought this suit for adeclaratory judgement and injunction to restrainfederal officials from approving an extensive skiingdevelopment in the Mineral King Valley in the SequoiaNational Forest. Petitioner relies on S 10 of theAdministrative Procedure Act, which accords judicialreview to a “person suffering legal wrong and because

of agency action, or [who is] adversely affected byagency action within the meaning of a relevant statute."On the theory that this was a “public” action involvingquestions as to the use of natural resources. The Courtsof Appeals reversed, holding that the club lackedstanding, and had not shown irreparable injury.

The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience ofthe reader. See United States v. Detroit Timber& Lumber Co., 200 U.S.321, 337,26 S.Ct.282,and 287,50 L.Ed.499. Leland R.Selna, Jr., SanFrancisco, Cal., for the petitioner.

Sol. Gen. Erwin N. Griswold, for respondents.

Mr. Justice STEWART delivered the opinion of thecourt.

The Mineral King Valley is a great area of naturalbeauty nestled in the Sierra Nevada Mountains inTulane County, California, adjacent to the SequoiaNational Park. It has been part of the SequoiaNationalForest since1926, and is designated as anational game refuge by special Act of Congress.1

Though once the site of extensive mining activity,Mineral King is now used exclusively for recreationalpurposes. Its relative inaccessibility and lack ofdevelopment have limited the number of visitors eachyear., and at the same rime they have preserved of thevalley’s quality as a quasi-widerliness area largelyuncluttered by products of civilization.

The United States Forest Service, which is entrustedwith the maintenance and administration of nationalforests, began in the late 1940’s to give considerationto Mineral King as a potential site for recreationaldevelopment. Prodded by a rapidly increasing demandfor skiing facilities, the Forest Service published aprospectus in 1965, inviting bids from privatedevelopers for the construction and operation of a skiresort that would also serve as a summer recreationarea. The proposal of Walt Disney Enterprises. Inc.was chosen from those of six bidders, and Disneyreceived a three-year permit to conduct surveys andexplorations in the valley in connection with itspreparation of a complete master plan for the resort.

The final Disney plan, approved by the Forest Servicein January 1969, outlines a $35 million complex ofmotels, restaurants, swimming pools, parking lots, and

1 Act of July 3,1926 s 6,44 stat.821, 16 U.S.C.s 688.

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other structures designed to accommodate 14,000visitors daily. This complex is to be built on 80 acresof valley floor under a 30-year use permit from theForest Service. Other facilities, including ski lifts, skitrails, a cog-assisted railway, and utility installationsare to be constructed on the mountain slopes and otherparts of the valley under a revocable special-use permit.To provide access to the resort, the State of Californiaproposes to construct a highway 20 miles in length. Asection of this road would traverse Sequoia NationalPark, as would a proposed high-voltage power lineneeded to provide electricity to the resort. Both thehighway and the power line require the approval ofthe Department of Interior, which is entrusted withthe preservation and maintenance of the national parks.

Representatives of the Sierra club, who favormaintaining Mineral King largely in its present state,followed the progress of recreational planning for thevalley with close attention and increasing dismay. Theyunsuccessfully sought a public hearing on the proposeddevelopment in 1965, and in subsequentcorrespondence with the officials of the Forest Serviceand Department of Interior, they expressed theClub’s objections to Disney’s plan as a whole and toparticular features included in it. In June 1969, the clubfiled the present suit in United States District ofCalifornia, seeking a declaratory judgement thatvarious aspects of the proposed developmentcontravene federal laws and regulations governing thepreservations of national parks, forests, game refuges2

and also seeking preliminary and permanentinjunctions restraining the federal officials involvedfrom granting their approval or issuing permits inconnection with the Mineral King project. Thepetitioner, Sierra Club sued as a membershipcorporation with “a special interest in the conservationand the sound maintenance of the national parks, gamerefuges and forests of the country,” and invoked thejudicial review provisions of the AdministrativeProcedure Act, 5 U.S.C. ss701 et seq.

After two days of hearings, the District Court grantedthe requested preliminary injunction. It rejected therespondent’s challenge to the Sierra Club’s standing

to sue, and determined that the hearing had raisedquestions “concerning possible excess of statutoryauthority, sufficiently substantial and serious to justifya preliminary injunction…” The respondents appealed,and the court of Appeals for the Ninth Circuit reversed.433 F.2d 24.With respect to the petitioner’s standing,the court noted that there was “no allegation in thecomplaint that members of the State in Sierra Clubwould be affected by the actions (of the respondents)other than the fact that the actions are personallydispleasing or distasteful to them”, id, at 33, andconcluded:

“We do not believe such club concern withoutshowing of more direct interest can constitutestanding in the legal sense sufficient tochallenge the exercise of responsibilities onbehalf of all citizens by two cabinet levelofficials of the government acting underCongressional and Constitutional authority.”Id., at 30.

Alternatively, the Court of Appeal held that SierraClub had not made an adequate Showing of irreparableinjury and likelihood of success on the merits to justifyissuance of a preliminary injunction. The Court thusvacated the injunction. The Sierra Club filed a petitionfor a writ of certiorari, which was granted (401U.Y.S.907.91).

I IThe first question presented is whether the SierraClub has alleged facts that entitle it to obtain judicialreview of the challenged action. Whether a party has asufficient stake in an otherwise justiceable controversy,to obtain judicial resolution of that controversy is whathas traditionally been referred to as the question ofstanding to sue. Where the party does not rely on anyspecific statute authorizing invocation of the judicialprocess, the question of standing depends upon whetherthe party has alleged such a “personal stake in theoutcome of the controversy” (Baker v. Carr,369,U.S.186, 204,82 S.C. 691, 703, 7 L.Ed.2d 633), asto ensure that the “dispute sought to be adjudicatedwill be presented in an adversary context and in a form

2 As analyzed by the District Court, the complaint alleged violations of law falling into four categories. First, it claimed thatspecial –use permits for construction of the resort exceeded the maximum-acreage limitation placed upon such permits by16 U.S.C. ss 497, and that the issuance of a “revocable” use permit beyond the authority of Forest Service. Second, itchallenged the proposed permit for the highway through Sequoia National Park on the grounds that the highway would notserve any of the purposes of the park, in alleged violation of 16 U.S.C.ss 1, and that it would destroy timber and othernatural resources protected by 16 U.S.C.ss 41 and 43. Third, it claimed that the Forest Service and the Department of theInterior had violated their own regulations by failing to hold adequate public hearings on the proposed project. Finally, thecomplaint asserted that 16 U.S.C.s 45c requires specific congressional authorization of a permit for construction of a powertransmission line within the limits of a national park.

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historically viewed as capable of judicial resolution”(Flast v. Cohen, 392 U.S.83, 101,88,S.Ct.2942, 1953,20,L.Ed.2d 947). Where, however, Congress hasauthorized public officials to perform certain functionsaccording to law, and has provided by statute forjudicial review of those actions under certaincircumstances, the inquiry as to the standing must beginwith a determination of whether the statute in questionauthorizes review at the behest of the plaintiff.3

The Sierra Club relies upon ss 10 of the AdministrativeProcedure Act (APA), 5 U.S.C.702, which provides:

“ A person suffering legal wrong because ofagency action, or adversely affected oraggrieved by agency action within the meaningof a relevant statute, is entitled to judicialreview thereof.”

Early decisions under this statute interpreted thelanguage as adopting the various formulations of “ legalinterest” and “legal wrong” then prevailing asconstitutional requirements of standing.4 But, inassociation of Data Processing Service Organizations,Inc. v. Camp, 397 U.S.150, 90 S.Ct. 832,25 L.Ed.2d192, decided the same day, we held more broadly thatpersons had standing to obtain judicial review of

federal agency action under ss 10 of the APA wherethey had alleged that the challenged action had causedthem “injury to an interest” arguably within thezone of interests to be protected or regulated by thestatutes that the agencies were claimed to haveviolated.5

In Data Processing, the injury claimed by thepetitioners consisted of harm to their competitiveposition in the computer servicing market through aruling by the Comp-troller of the Currency thatNational Banks might perform data processing servicesfor their customers. In Barlow, the petitioners weretenant farmers who claimed that certain regulations ofthe Secretary of Agriculture adversely affected theireconomic position vis-à-vis their landlords. Thesepalpable economic injuries have long been recognizedas sufficient to lay the basis for standing, with orwithout a specific statutory provision for judicialreview.6 Thus, neither Data Processing nor Barlowaddressed itself to the question, which has arisen withincreasing frequency in federal courts in recent years,as to what must be alleged by persons who claim injuryof non economic nature to interests that are widelyshared.7 That question is presented in that case.

3 Congress may not confer jurisdiction in Art. III on federal courts to render advisory opinions. Muskrat v. United States. 219U.S.346.31 S.C. 450,55, L.Ed. 246, or to entertain “friendly” suits. United States v. Johnson, 319 U.S.306,63 S.Ct.1075,87L.Ed.1413,or to resolve “political questions,”Luther v. Borden, 7 How, 1,12 L.Ed.581, because suites of this character areinconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable, whether the litigant is a“proper party to request an adjudication of a particular issue;” Flast v. Cohen, 392 U.S.83, 100,88, S.Ct.1942, 1952, 20 L.Ed.2d 947, is one within the power of Congress to determine. C. f . FCCC v. Sanders Bros. Radio Station, 309. U.S.470,477,60 S.Ct. 693, 698,84 L.Ed.869: Flast v. Cohen, supra, 392 U.s., at 120,88 s. Ct., at the 1963 (Harlan, J., dissenting);Associated industries of New York State v. Ickes, 2 Cir., 134 F2d 694,704.See generally Berger, Standing to Sue in PublicActions: Is it a Constitutional Requirement?, 78 Yale L .J 816,827 et seq. (1969) ; Jaffe, The Citizen as Litigant in PublicActions: The Non-Hohfeldian or Ideological Plaintiff, 116 U.Pa . L. Rev.1033(1968).

4 See, e.g., Kansas City Powder & Light Co.v Mc. Kay, 96 U.S.App.D.C. 173,281,225 F.2d 924,932: Ove GustavssonContracting Co. Floete, 2 Cir., 278 F.2d 912,914; Duba v. Schuetzle, 8 Cir., 303 F.2d 570,574. The theory of a “legalinterest” is expressed in its extreme forming Alabama Power Co. v. Ickes,302 U.S . 464.479-481,58 S. Ct .300,303-304,82L.Ed.374. See also Tennessee Electric Power Co.v. TVA, 306 U.S .118,137-139,59 S.Ct .366,369-370,83 L.Ed.543.

5 In deciding this case, we do not reach any questions concerning the meaning of the “zone of interests” test or its possibleapplication to the facts here presented.

6 See, e.g. Hardin v. Kentucky Utilities Co. , 390 U.S. 1,7,88,S.Ct.651,655,19L.Ed.2d 787; Chicago v. Atchison,T. &S.F.R.Co., 357 U.S 77,83,78 S.Ct. 1063,1067,2 L.Ed.2d 1174; FCC v. Sanders Bros. Radio Stationa, supra,309 U.S., at477, 60 S.Ct., 698.

7 No question of standing was raised in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.402,91 S.Ct. 814,28L.Ed.2d 136. The complaint in that case alleged that the organizational plaintiff represented members who were “residentsof Memphis, Tennessee who use Overton Park as a park land and recreation area and who have been active since 1964 inefforts to preserve and protect Overton Park as park land and recreation area.

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III[5] The injury alleged by the Sierra Club will beincurred entirely by reason of change in the uses towhich Mineral King will be put, and attendant changein the aesthetics and ecology of the area. Thus, inreferring to the road to be built through SequoiaNational Park, the complaint alleged that thedevelopment “would destroy or otherwise adverselyaffect the scenery, natural and historic objects andwildlife of the park and would impair the enjoymentof the park for future generations.” We do not questionthat this type of harm may amount to an “injury infact” sufficient to lay the basis for standing under ss10 of the APA. Aesthetic and environmental well-beingare important ingredients of the quality of life in oursociety, and the fact that particular environmentalinterests are shared by the many rather than the fewdoes not make them less deserving of legal protectionthrough the judicial process. But the “injury in fact”test requires more than an injury to a cognizableinterest. It requires that the party seeking review behimself among the injured.

The Club apparently regarded any allegations ofindividualized injury as superfluous, on the theory thatthis was a “public” action involving questions as tothe use of natural resources, and that the Club’slongstanding concern with and expertise in suchmatters were sufficient to give it standing as a“representative of public.”8 This theory reflects amisunderstanding of our cases involving so-called“public actions” in the area of administrative law.

The origin of the theory advanced by the Sierra Clubmay be traced to a dictum in Scripps-Howard Radio v.FCC, 316 U.S. 4,62 S.Ct. 875,86 L.Ed. 1229, in whichthe license of a radio station in Cincinnati, Ohio, soughta stay of an order of the FCC allowing another radiostation in a nearby city to change its frequency andincrease its range. In discussing its power to grant astay, the Court noted that “these private litigants have

standing only as representatives of the public interest.”Id., at 14,62 S.Ct., at 882. But the observation did notdescribe the basis upon which the appellant wasallowed to obtain judicial review as a “personaggrieved” within the meaning of the statute involvedin that case,9 since Scripps-Howard was clearly“aggrieved” by reason of the economic injury that itwould suffer as a result of the Commission’s action.1 0

The Court’s statement was rather directed to the theoryupon which Congress had authorized judicial reviewof the Commission’s actions. That theory had beendescribed earlier in FCC v. Sanders Bros. RadioStation, 309 U.S. 470, 477, 60 S.Ct. 693, and 698, 84L.Ed. 869, as follows.

“Congress had some purpose in enactingsection 402 (b) 2. It may have been of opinionthat one likely to be financially injured by theissue of license would be the only personhaving a sufficient interest to bring to theattention of the appellate court errors of lawin the action of the Commission in grantingthe license. It is within the power of Congressto confer such standing to prosecute anappeal.”

[6] Taken together, Sanders and Scripps-Howard thusestablished a dual proposition: the fact of economicinjury is what gives a person standing to seek judicialreview under the statute, but once review is properlyprovoked, that the person may argue the public interestin support of his claim that the agency has failed tocomply with its statutory mandate.1 1 It was in the lattersense that the “standing” of the appellant in Scripps-Howard existed only as a “representative of the publicinterest”. It is in similar sense that we have used thephrase “private attorney general” to describe thefunction performed by persons upon whom Congresshas conferred the right to seek judicial review of agencyaction. See Data Processing, supra, 397 U.s., at 154,90S.C., at 830.

8 This approach to the question of standing was adopted by the Court Of Appeals for the second Cirvuit in Citizens Committeefor Hudson Valley v. Volpe. 425 F.2d 97,105

9 The statute involved was 402(b) of the Communications Act of 1934,48 Stat.1093.

10 This much is clear from the Scripps-Howard Court’s citation of FCC v. Sanders Bros. Radio Station, 309 U.S.470, 60S.Ct. 693, 84 L.Ed.869, in which the basis for standing was the competitive injury that the appellee would have suffered bythe licensing of another radio station in its listening area.

11 The distinction between standing to initiate a review proceeding, and standing to assert the rights of the public or of thethird persons once the proceeding is properly initiated, is discussed in 3 K .Davis, Administrative Law Treatise ss 22.05-22.07 (1958).

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The trend of cases arising under the APA and otherstatutes authorizing judicial review of federal agencyaction has been toward recognizing that injuries otherthan economic harm are sufficient to bring a personwithin the meaning of statutory language, and towarddiscarding the notion that injury that is widely sharedis ipso facto not injury sufficient to provide the basisfor judicial review. 1 2 We noted this development withapproval in Data Processing, 397 U.S., at 154,90 S.C.,at 830, in saying that the interest alleged to have beeninjured "may reflect aesthetic, conservational, andrecreational as well as economic values.” Butbroadening the categories of injury that may be allegedin support of standing is a different matter fromabandoning the requirement that the party seekingreview must himself have suffered an injury.

Some courts have indicated a willingness to takethis latter step by conferring standing uponorganizations that have demonstrated “anorganizational interest in the problem” ofenvironmental or consumer protection. Environmentaldefense Fund, Inc. Hardin, and 138 U.S. App.D.C.391,395,428 F.2d 1093, 1097.1 3 It is clear that anorganization whose members are injured may represent

those members in a proceeding for judicial review. See,e.g., NAACP v. Button, 371 U.S.415, 428, 83 S.Ct.328,335,9 L.Ed 405. But a mere “interest in a problem”no matter how longstanding the interest and no matterhow qualified the organization is in evaluating theproblem, is not sufficient by itself to render theorganization “adversely affected” or “aggrieved”within the meaning of APA. The Sierra Club is a largeand long establishment in the course of protecting ourNation’s natural heritage from man’s depredations. Butif a “special interest” in this subject were enough toentitle the Sierra Club to commence this litigation,there would appear to be no objective basis upon which todisallow a suit by any other bona fide “special interest”could initiate such litigation, it is difficult to perceivewhy any individual citizen with the same bona fidespecial interest would not also be entitled to do so.

The requirement that a party seeking reviewmust allege facts showing that he himself adverselyaffected does not insulate executive action fromjudicial review, nor does it prevent any public interestsfrom being protected through the judicial process.1 4 Itdoes give as at least a rough attempt to put a decisionas to whether review will be sought in the hands of

12 See, e.g., Environmental defense Fund, Inc.c.v.Hardin,138 U.S. App. D.C.391, 395,428 F.2d 1093, 1097 (interest inhealth affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containingDDT) ; Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C.328,339,359 F.2d 994,1005(interest of television viewers in the programming of a local station community planning licensed by FCC); Scenic HudsonPreservation Conf.v. FPC, 2 Cir., 354 F2d 608, 615-616(interests in esthetics, recreation, and orderly community planningaffected by FPC licensing of a hydro-electric project); Reade v. Ewing, 2Cir., 205 F.2d 630,631-632 (interest of consumersof oleomargarine in fair labeling of product regulated by Federal Security Administration); Crowther v.Seaborg, D.C.,312F.Supp.1205,1212 (interest in health and safety of persons residing near the site of a proposed atomic blast).

13 See Citizens Committee for Hudson Valley v. Volpe, n. 9, supra; Environmental Defense Fund, Inc. v. Corps of Engineers,D.C.325 F.Supp. 728, 734-736; Izaak Walton League of America v. St.Clair, D.C. 313 F. Supp. 1312,1317. See also ScenicHudson Preservation Conf. V.FPC. Supra, 354 F.2d, at 616.

“ In order to insure that the Federal Power Commission will adequately protect the public in the aesthetic, conservational,and recreational aspects of power development, those who by their activities and conduct have exhibited a special areas,must be held to be included in the class of the “aggrieved” parties under ss 313(b) [of the federal Power Act]."

In most,if not all of these cases, at least one party to the proceeding did assert an individualized injury to itself or, in thecase of an organization, to its members.

14 In its reply brief, after noting the fact that it might have chosen to assert individualized injury to itself or to its membersas a basis for standing, the Sierra Club states: “ The Government seeks to create a ‘reads I win, tails you lose’ situation inwhich either the courthouse door is barred for lack of assertion of a private, unique injury or a preliminary injunction isdenied on the ground that the litigant has advanced private injury which does not warrant an injunction adverse to competingpublic interest. Counsel have…aped their case to avoid this trap.” The short answer to this contention is that the trap doesnot exist. The test injury in fact goes only to the question of standing to obtain judicial review. Once this standing isestablished, the party may assert the interest of general public in support of his claims for equitable relief. See n.12 andaccompanying text, supra.

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those who have direct stake in the outcome. That goalcould be undermined were we to construe the APAto authorize judicial review at the behest oforganizations or individuals who seek to do more thanindicate their own value preferences through judicialprocess.1 5

[11] As we conclude that the Court of Appeals wascorrect in its holding, the Sierra Club lacked standingto contain this action.Judgement affirmed.

Mr. Justice POWELL and Mr. Justice REHNQUISTtook no part in the consideration of the decision of this case.

Mr. Justice DOUGLAS, dissenting.

I share the views of my brother BLACKMUN and

would reverse the judgement below.

The critical question of “standing”1 6 would besimplified and also put neatly into focus if we fashioneda federal rule that allowed environmental issues to belitigated before federal agencies or federal courts inthe name of the inanimate object about to be despoiled,defaced, or invaded by roads and bulldozers and whereinjury is the subject of public outrage. Contemporarypublic concern for protecting nature’s ecologicalequilibrium should lead to the conferral of standingupon environmental objects to sue for their ownpreservation. See, Should Trees Have Standing?Toward Legal Rights for Natural Objects, 45S.Cal.L.Rev.450 (1972). This suit would therefore bemore properly labeled as Mineral King v. Morton.

Inanimate objects are sometimes parties in litigation.A ship has a legal personality, a fiction found usefulfor maritime purposes.1 7 The corporation sole- acreature of ecclesiastical law- is an accepted adversary

15 Every school boy may be familiar with the famous observation, written in the 1830’s, that “scarcely doesany political question arises in the United States that is not resolved, sooner, or later, into judicial question.” 1 Democracyin America280 (1945). Less familiar, however, is De Toequeville’s further observation that judicial review is effectivelargely because it is not available simply at the beherest of a partisan faction, but is exercised only to remedy a particular,concrete injury.

“ It will be seen, also, that by leaving it to the private to censure the law, and by intimately uniting the trial of the law withthe trial of an individual, legislation is protected from wanton assault and from the daily aggressions of the party spirit. Theerrors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serveas basis of a prosecution.” Id., at 102.

16 See generally Association of data processing Serving Organizations, Inc. v. Camp, 397 U.S .150,90 S.Ct. 827,25 L.Ed.2d184 (1970); Barlow v. Collins,397 U.S.159,90,S.Ct.832,25 L.Ed.2d192 (1970); Flast v. Cohen,392 U.S.83,88 S.Ct.1942,20 L.Ed.2d 947 (1968).See also Mr.Justice Brennan’s separate opinion in Barlow v. Collins, supra, 397 U.S., at 167,90S.C.t., at 838. The issue of statutory standing aside, no doubt exists that “ injury in fact” to “aesthetic” and “conservational”interests is here sufficiently threatened to satisfy the cease-or-controversy clause. Association of Data Processing ServiceOrganizations, Inc. v. Camp, supra, 397 U.S., at 1564, 90 S.Ct., 830.

17 In rem actions brought to adjudicate libelants ‘interests in vessels are well known in admiralty.G.Gilmore & C. Black, TheLaw of Admiralty 31 (1957). But admiralty also permits a salvage action to be brought in the name of rescuing vessel.The Camanche, 8 Wall.448, 476,19 L.Ed. 397 (1869). And, in collision, Litigation, the first libeled ship maycounterclaim in its own name. The Gylfe v. The Trujillo, 209.F2d 386 (CA2 1954). Our case law has personalizedvessels:

“A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching sheis a mere congeries of wood and iron…In the baptism of launching she receives her name, and from the momenther keel touches the water she is transformed….She acquires a personality of her own;” Tucker v.Alexandroff,183U.S.424,438, 22 S.Ct.195, 201,46 L.Ed.264.

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and large fortune ride on its cases.1 8 The ordinarycorporation is a "person” for purposes of theadjudicatory processes, whether it representsproprietary, spiritual, aesthetic, or charitable causes.1 9

Mineral King is doubtless like other wonders of theSierra Nevada such as Tuolumne Meadows and theJohn Muir Trail. Those who hike it, fish it, hunt it,camp in it, frequent it, or visit it merely to sit in solitudeand wonderment are legitimate spokesmen for it,whether they may be few or many. Those who havethat intimate relation with the inanimate object aboutto be injured polluted, or otherwise despoiled are itslegitimate spokesmen.

The Solicitor General, whose views on this subjectare in he Appendix to this opinion, takes a whollydifferent approach. He considers the problem in termsof “government by the Judiciary.” With all respect,the problem is to make certain that the inanimateobjects, which are the very core of America’s beauty,have spokesmen before they are destroyed. It is ofcourse, true that most of them are under the control ofa federal or state agency.

The standards given those agencies are usuallyexpressed in terms of the “public interest”. Yet “publicinterest” has so many differing shades of meaning as

to be quite meaningless on the environmental front.Congress accordingly has adopted ecological standardsin the National Environmental Policy Act of 1969,Pub.L.91-90, 83 Stat. 852, 42 U.S.C. ss 4321 et seq.,and guidelines for agency action have been providedby the Council on Environmental Quality of whichRussell E. Train is Chairman. See 36 Fed. Reg.7724.

Yet the pressures on agencies for favorable action oneway or the other are enormous. The suggestion thatCongress can stop undesirable action is true intheory; yet even Congress is too remote to givemeaningful direction and its machinery is tooponderous to use very often. The federal agencies ofwhich I speak are not venal or corrupt. But they arenotoriously under the control of powerful interests whomanipulate them through advisory committees, orfriendly working relations, or who have that naturalaffinity with the agency which in time developsbetween the regulator and the regulated.2 0 As early as1894, Attorney General Olney predicted that regulatoryagencies might become “industry- minded,” asillustrated by his forecast concerning the InterstateCommerce Commission.

“ The Commission is, or can be made, of greatuse to the railroads, it satisfies the popularclamor for a government supervision of

18 At common law, an officeholder, such as a priest or king, and his successors constituted, a corporation sole, a legal entitydistinct from the personality which managed it. Rights and duties were deemed to adhere to this device rather than to theofficeholder in order to provide continuity after the latter retired. American Courts occasionally revive the notion. E.g.,Reid V. Barry, 93 Fla. 849,112 So.846 (1927), discussed in recent cases, 12 Minn.L.Rev.295(1928); and in note, 26 Mich.L.Rev.545 (1928); see generally 1 W.Fletcher, Cyclopedia of the Law of Private Corporation ss 50-53(1963) ; 1 P.Potter,Law of Corporations 27 (1881)

19 Early jurists considered the Convention Corporation to be a highly artificial entity. Lord Coke opined that a corporation’screation “rests only in intendment and consideration of law” Case of Sutton’s Hospital. 77 Eng. Rep.937, 97.. (K.B.1612).Mr.Chief Justice Marshall added that the device is “an artificial being, invisible, intangible, and existing only in contemplationof law.” Trustees of Dartmouth College v. Woodward, Whate, 518, 4 L.Ed. 629 (1819). Today, suits in the names ofcorporations are taken for granted.

20 The federal budget annually includes about $ 75 million for underwriting about 1,500 advisory committees attached tovarious regulatory agencies. These groups are almost exclusively composed of industry representatives appointed by thePresident or by the Cabinet members. Although public members may be on these committees, they are rarely asked to serve.Senator Lee Metcalf warn; “Industry advisory committees exist inside most important federal agencies, even have officesin some. Legally, their function is purely as kibitzer, but in practice many have become internal lobbies- printing industryhandouts in the Government Printing Office with taxpayers’ money, and even influencing policies. Industry committeeperforms the dual function of stopping government from finding out about corporations while at the same time helpingcorporations get inside information about what government is doing. Sometimes, the same company that an advisorycouncil that obstructs or turns down a government questionnaire is precisely the company which is withholding informationthe government needs in order to enforce a law.” Metcalf, The Vested Oracles: How Industry Regulates Government, 3 TheWashington Monthly, July 1971,p.45. For proceeding conducted by Senator Metcalf exposing these relationships, seeHearings on S.3067 before the Subcommittee on the Intergovernmental Relations of the Senate Committee on GovernmentOperations, 91st Cong.,2d Sess.(1970); Hearings on S.1637, S.1964, and S.2064 before the Subcommittee onIntergovernmental Relations of the Senate Committee on Government Operations, 92d Cong., 1st Sess.(1971).

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railroads, at the same time that that supervisionis almost entirely nominal. Further, the oldersuch a commission gets to be, the more inclinedit will be found to take the business and railroadview of the things.” M.Josephson.The Politicos525 (1938).”

Years later, a court of appeals observed, “the recurringquestion which has plagued public regulation ofindustry [is] whether the regulatory agency is undulyoriented toward the interest of the industry it isdesigned to regulate, rather than the public interest itis designed to protect.” Moss v. CAB, 139U.S.App.D.C.150, and 152, 430 f.2D 891, 893.

The voice of the inanimate object, therefore, shouldnot be stilled. That does not mean that the judiciarytakes over the managerial functions from the federalagency. It merely means that before these priceless bitsof Americana (such as a valley, an alpine meadow, ora lake) are forever lost or are so transformed as to bereduced to the eventual rubble of our urbanenvironment, the voice of the existing beneficiaries ofthese environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of“progress” will plow under all the aesthetic wondersof this beautiful land that is not the present question.The sole question is who has standing to be heard?

APPENDIX TO OPINION OF DOUGLAS J.,

DISSENTINGExtract From Oral Argument of The Solicitor General.

“As far as I know, no case has yet been decided whichholds that a plaintiff which merely asserts that, to quotefrom the complaint here, its interest would be widelyaffected and that ‘it would be aggrieved’ by the acts ofthe defendant, has standing to raise legal questions incourt.

But why not? Do not the courts exist to decide legalquestions? And are they not the most impartial andlearned agencies that we have in our governmentalsystem? Are there not many questions that must bedecided by the courts? Why should not the courtsdecide any question that any citizen wants to raise?

As the tenor of my argument indicates this raises, Ithink, a true question, perhaps a somewhat novelquestion of separation of power…

Ours is not a government but the Judiciary. It is agovernment of three branches, each of which was

intended to have broad and effective powers subjectto checks and balances. In litigable cases, the courtshave great authority. But the Founders also intendedthat the congress should have wide powers, and thatthe Executive Branch should have wide powers. Allthese officers have great responsibilities. They are notless sworn than are the members of this Court to upholdthe Constitution of the United States.

This, I submit, is what really lies behind the standingdoctrine, embodied in those cryptic words ‘case’ and‘controversy’ in Article III of the constitution.

Analytically one could have a system of governmentin which every legal question arising in the core ofgovernment would be decided by the courts. It wouldnote be, I submit a good system.

More important, it is not the system which wasordained and established in our Constitution, as it hasbeen understood for nearly 200 years.

Over the past 20 or 25 years, there has been a greatshift in the decision of legal questions in ourgovernmental operations in the courts. This has beenthe result of continuous whittling away of the numerousdoctrines which have been established over the years,designed to minimize the number of governmentalquestions which it was the responsibility of the courtsto consider.

I have already mentioned the most ancient of all: caseor controversy, which was early relied on to preventthe presentation of feigned issues to the court.

But there are many other doctrines, which I cannotgo into detail: review-ability, justiciability, sovereignimmunity, mootness in various aspects, statutes oflimitations in laches, jurisdictional amount, real partyin interest, and various questions in relation to joinder.

Under all of these headings, limitations whichpreviously existed to minimize the number of questionsdecided in courts, have broken down in varyingdegrees.

I might also mention the explosion development ofclass actions, which has thrown more and more issuesinto the courts.

If there is standing in this case, I find it very difficultto think of any legal issue arising in government whichwill not have to await one or more decisions of theCourt before the Administrator, sworn to uphold thelaw, can take any action. I’m not sure that it’s good for

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the courts. I do find myself more and more sure that itis not the kind of allocation of governmental powersin our tripartite constitutional system that wascontemplated by the Founders.

I do not suggest that the administrators can act at theirwhim and without any check at all. On the contrary, inthis area they are subject to continuous check by theCongress. Congress can stop this development any timeit wants to.”

Mr. Justice BRENNAN, Dissenting.

I agree that the Sierra Club has standing for the reasonsstated by my Brother BLACKBURN in AlternativeNo.2 of his dissent. I therefore would reach the merits.Since the Court does not do so, however, I simply noteagreement with my Brother BLACKBURN that themerits are substantial.

Rather than pursue the Court has chosen to take by itsaffirmance of the judgement of the Court of Appeals,I would adopt one of two alternatives:

1. I would reverse that judgement and, instead,approve the judgement of the District Court,which recognized standing in the Sierra Club andgranted preliminary relief. I would be willing todo this on condition that the Sierra Club forthwithamends its complaint to meet the specificationsthe Court prescribes for standing. If Sierra Clubfails or refuses to take the step, so be it; the casewill then collapse. But if it does amend, the meritswill be before the trial court once again. As thecourt, ante, at 1364 n.2, so clearly reveals theissues on the merits are substantial and deserveresolution. They assay new ground. They arecrucial to the future of Mineral King. They raiseimportant ramifications for the quality of thecountry’s public land management. They pose thepropriety of the “dual permit” device as a meansof avoiding the 80-acre “recreation and resort”limitation imposed by Congress in 16 U.S.C. ss497, an issue that apparently has never beenlitigated, and is clearly substantial in light of thecongressional expansion of the limitation in 1956arguably to put teeth into the old, unrealistic fiveacre limitation. In fact, they concern the proprietyof 80-acre permit itself and the consistency of theentire, enormous development with the statutorypurposes of the Sequoia Game Refuge, of whichthe Valley is a part. In the context of this particulardevelopment, substantial questions are raisedabout the use of a national park area for Disneypurposes for a new high-speed road and 66,000-

volt power line to serve the complex. Lack ofcompliance with existing administrativeregulations is also charged. These issues are notshallow or perfunctory.

2. Alternatively, I would permit an imaginativeexpansion of our traditional concepts of standingin order to enable an organization such as theSierra Club, possessed, as it is, of pertinent, bonafide, and well-recognized attributes and purposesin the area of environment, to litigateenvironmental issues. This incursion upontradition need not be very extensive. Certainly, itshould be no cause for alarm. It is no moreprogressive than was the decision in DataProcessing itself. It need only recognized theinterest of one who has a provable, sincere,dedicated, and established status. We need not fearthat Pandora’s box will be opened or that therewill be no limit to the number of those who desireto participate in environmental litigation. Thecourts will exercise appropriate restraints just asthey have exercised them in the past. Who wouldhave suspected 20 years ago that the concepts ofstanding enunciated in Data Processing andBarlow would be the measure for today And Mr.Justice DOUGLAS, in his eloquent opinion, hasimaginatively suggested another means and one,in its own way, with obvious, appropriate, andself-imposed limitations as to standing. As I readwhat he has written, he makes only one additionto the customary criteria (the existence of agenuine dispute; the assurance of adversariness;and a conviction that the party whose standing ischallenged will adequately represent the interesthe asserts), that is, that the litigant be one whospeaks knowingly for the environmental valueshe asserts.

I make two passing references:

1. The first relates to the Disney figures presented touse. The complex, the Court notes, willaccommodate 14,000 visitors a day (3,100overnight; some 800 employees; 10 restaurants;20 ski lifts). The State of California has proposedto build a new road from Hammond to MineralKing. That road, to the extent of 9.2 miles, is totraverse Sequoia National Park. It will have onlytwo lanes, with occasional passing areas, but itwill be capable, it is said, of accommodating 700-800 vehicles per hour and peak of 1,200 per hour.We are told that the State has agreed not to seekany further improvement in road access throughthe park.

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If we assume that the 14,000 daily visitors comeby automobile (rather than by helicopter or bus orother known or unknown means) and that eachvisiting automobile carries four passengers (anassumption, I am sure that is far too optimistic),those 14,000 visitors will move in 3,500 vehicles.If we confine their movement (as I think weproperly may for this mountain area) to 12 hoursout of the daily 24, the 3,500 automobiles will passany given point on the two-lane road at the rate ofabout 300 per hour. This amounts to five vehiclesper minute, or an average of one every 12 seconds.This frequency is further increased to one every

six seconds when the necessary return traffic alongthat same two-lane road is considered. And thisdoes not include service vehicles and employees’cars. Is this the way we perpetuate the wildernessand its beauty, solitude, and quiet?

2. The second relates to the fairly obvious fact thatany resident of the Mineral King area- the real“user” – is an unlikely adversary for this Disney-governmental project. He naturally will be inclinedto regard the situation as one that should benefithim economically.

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An action was brought alleging that the Atomic EnergyCommission failed to comply with the demands of thenational environmental policy act requiring thecommission to give consideration to environmentalfactors.

NEPA prescribed certain procedural measures to ensurethat values are respected. The petitioners alleged thatthe rules adopted by the atomic Energy Commissionto govern consideration of environmental matters donot confirm to the rigours demanded by NEPA. Thecommission contended that the vagueness of the NEPAmandate and delegation left room from discretion andthe challenge by the petitioners fell within the broadscope of the act.

HELD

1. NEPA makes environmental protection a part of themandate of every federal agency and department;federal agencies and departments must "considerenvironmental issues as they consider othermatters within their mandates.

2. The Commission’s rules did not comply withcongressional policy enunciated in NEPA.

DISPOSITION

Remanded for Proceedings Consistent with thisOpinion.

CORE TERMS: environmental, license, certification,fullest, water quality, balancing, staff, detailedstatement, alteration, environmental quality, operatinglicense, federal government, water, environmentalprotection, environmental impact, practicable,

recommendation, federal agencies, proposed action,effective date, abdication, guidelines, accompany,environmental damage, national policy, reviewprocess, appendix, insure, federal action, regulations.

JUDGES: Wright, Tamm and Robinson, CircuitJudges,

OPINION BY: WRIGHT

OPINION: J. SKELLY WRIGHT, Circuit Judge:

These cases are only the beginning of what promisesto become a flood of new litigation, seekingjudicial assistance in protecting our naturalenvironment. Several recently enacted statutes attestto the commitment of the Government to control, atlong last, the destructive engine of material“progress.”1 But it remains to be seen whether thepromise of this legislation will become a reality.Therein lies the judicial role. In these cases, we mustfor the first time, interpret the broadest and perhapsmost important of the recent statutes: the NationalEnvironmental Policy Act of 1969 (NEPA).2 We mustassess claims that one of the agencies charged with itsadministration has failed to live up to the congressionalmandate. Our duty, in short, is to see that importantlegislative purposes, heralded in the halls of Congress,are not lost or misdirected in the vast hallways of thefederal bureaucracy.

NEPA, like so much other reform legislation of thelast 40 years, is cast in terms of a general mandate andbroad delegation of authority to new and oldadministrative agencies. It takes the major step ofrequiring all federal agencies to consider values ofenvironmental preservation in their spheres of activity,

CALVERT CLIFFS COORDINATING COMMITIES INC.

VERSUS

ATOMIC ENERGY COMMISION

U.S. Court of Appeals D.C., Circuit, 1971, 449 F. 2d 1109 (D.Civ. 1971)

Duty of federal agencies to consider environmental values in their daily operations.

1 Environmental Quality Improvement Act of 1970, 42 D.S.CA. §§ 4371-4374 (1971 Pocket Part); Water andEnvironmental Quality Improvement Act of 1970, Pub. L. 91-224, 91st Cong., 2d Sess. (1970), 84 Stat. 91.

2 42 U.S.CA. § 4321 et seq. (1971 Pocket Part).

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and it prescribes certain procedural measures to ensurethat those values are in fact fully respected. Petitionersargue that rules recently adopted by the Atomic EnergyCommission to govern consideration of environmentalmatters fail to satisfy the rigors demanded by NEPA.The Commission, on the other hand, contends that thevagueness of the NEPA mandate and delegation leavesmuch room for discretion and that the rules challengedby petitioners fall well within the broad scope of theAct. We find the policies embodied in NEPA to be agood deal clearer and more demanding than does theCommission. We conclude that the Commission’sprocedural rules do not comply with the congressionalpolicy. Hence we remand these cases for further rulemaking.

We begin our analysis with an examination of NEPA’sstructure and approach and of the Atomic EnergyCommission rules which are said to conflict with therequirements of the Act. The relevant portion of NEPAis Title I, consisting of five sections.3

Section 10I sets forth the Act’s basic substantive policy:that the federal government “use all practicable meansand measures” to protect environmental values.Congress did not establish environmental protectionas an exclusive goal; rather, it desired a reordering ofpriorities, so that environmental costs and benefits willassume their proper place along with otherconsiderations. In Section 101(b), imposing an explicitduty on federal officials, the Act provides that “it isthe continuing responsibility of the FederalGovernment to use all practicable means, consistentwith other essential considerations of national policy,”to avoid environmental degradation, preserve “historic,cultural, and natural” resources and promote “the

widest range of beneficial uses of the environmentwithout undesirable and unintended consequences.”

Thus the general substantive policy of the Act is aflexible one. It leaves room for a responsible exerciseof discretion and may not require particular substantiveresults in particular problematic instances. However,the Act also contains very important “procedural”provisions which are designed to see thatall federal agencies do in fact exercise the substantivediscretion given them. These provisions are not highlyflexible. Indeed, they establish a strict standard ofcompliance.

NEPA, first of all, makes environmental protection apart of the mandate of every federal agency anddepartment. The Atomic Energy Commission, forexample, had continually asserted, prior to NEPA, thatit had no statutory authority to concern itself with theadverse environmental effects of its actions.4 Now,however, its hands are no longer tied. It is not onlypermitted, but compelled, to take environmental valuesinto account. Perhaps the greatest importance of NEPAis to require the Atomic Energy Commission and otheragencies to consider environmental issues just as theyconsider other matters within their mandates. Thiscompulsion is most plainly stated in Section 102.There, “Congress authorizes and directs that, to thefullest extent possible: (1) the policies, regulations,and public laws of the United States shall be interpretedand administered in accordance with the policies setforth in this Act.” Congress also “authorizes anddirects” that “(2) all agencies of the FederalGovernment shall” follow certain rigorous proceduresin considering environmental values.5 Senator Jackson,[*1113] NEPA’s principal sponsor, stated that “no

3 The full text of Title I is printed as an appendix to this opinion.

4 Before the enactment of NEPA, the Commission did recognize its separate statutory mandate to consider the specificradiological hazards caused by its actions; but it argued that it could not consider broader environmental impacts. Itsposition was upheld in State of New Hampshire v. Atomic Energy Commission, I Cir., 406 F.2d 170, cert. denied, 395 U.S.962, 89 S. Ct. 2100,23 L. Ed. 2d 748 (1969).

5 Only once-in § 102(2) (B)-does the Act state, in terms, that federal agencies must give full “consideration” to environmentalimpact as part of their decision making processes. However, a requirement of consideration is clearly implicit in the substantivemandate of § 1O I, in the requirement of § 102(1) that all laws and regulations be “interpreted and administered” in accord with thatmandate, and in the other specific procedural measures compelled by § 102(2). The only circuit to interpret NEPA to date has said that“this Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have animpact on man’s environment.” Zabel v. Tabb, 5 Cir., 430 F.2d 199,211 (1970). Thus a purely mechanical compliance with the particularmeasures required in § 102 (2) (C) & (0) will not satisfy the Act if they do not amount to full good faith consideration of the environment.See text at page 1116 infra. The requirements of § 102(2) must not be read so narrowly as to erase the general import of §§ 101, 102(1)and 102(2) (A) & (B). On April 23, 1971, the Council on Environmental Quality-established by NEPA-issued guidelines for federalagencies on compliance with the Act. 36 Fed. Reg. 7723 (April 23, 1971). The Council stated that “the objective of section 102(2) (C)of the Act and of these guidelines is to build into the agency decision making process an appropriate and careful consideration of theenvironmental aspects of proposed action * * *.” Id. at 7724.

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agency will [now] be able to maintain that it has nomandate or no requirement to consider theenvironmental consequences of its actions.”6 Hecharacterized the requirements of Section I02 as“action-forcing” and stated that “otherwise, these loftydeclarations [in Section 101] are nothing more thanthat.”7

The sort of consideration of environmental valueswhich NEPA compels is clarified in Section 102(2)(A) and (B). In general, all agencies must use a“systematic, interdisciplinary approach” toenvironmental planning and evaluation “indecisionmaking which may have an impact on man’senvironment.” In order to include all possibleenvironmental factors in the decisional equation,agencies must “identify and develop methods andprocedures * * * which will insure that presentlyunquantified environmental amenities and values maybe given appropriate consideration in decisionmakingalong with economic and technical considerations.”8

“Environmental amenities” wiII often be in conflictwith “economic and technical considerations.” To“consider” the former “along with” the latter mustinvolve a balancing process. In some instancesenvironmental costs may outweigh economic andtechnical benefits and in other instances they may not.But NEPA mandates a rather finely tuned and“systematic” balancing analysis in each instance.9

To ensure that the balancing analysis is carried outand given full effect, Section 102(2) (C) requires thatresponsible officials of all agencies prepare a “detailedstatement” covering the impact of particular actionson the environment, the environmental costs whichmight be avoided, and alternative measures whichmight alter the cost benefit equation. The apparentpurpose of the “detailed statement” is to aid in theagencies’ own decision-making process and to adviseother interested agencies and the public of theenvironmental consequences of planned federal action.Beyond the “detailed statement,” Section 102(2) (0)requires all agencies specifically to “study, develop,and describe appropriate alternatives to recommendedcourses of action in any proposal which involvesunresolved conflicts concerning alternative uses ofavailable resources.” This requirement, like the“detailed statement” requirement, seeks to ensure thateach agency decision maker has before him and takesinto proper account all possible approaches to aparticular project (including total abandonment of theproject) which would alter the environmental impactand the cost benefit balance. Only in that fashion is itlikely that the most intelligent, optimally beneficialdecision wilI ultimately be made. Moreover, bycompelling a formal “detailed statement” and adescription of alternatives, NEPA provides evidencethat the mandated decision making process has in facttaken place and, most importantly, allows those

6 Hearings on S. 1075, S. 237 and S. 1752 Before Senate Committee on Interior and Insular Affairs, 91st Cong., 1st Sess.206 (1969). Just before the Senate finally approved NEPA, Senator Jackson said on the floor that the Act “directs allagencies to assure consideration of the environmental impact of their actions in decision making.” 115 Cong.Rec. (Part 30)40416 (1969).

7 Hearings on S. 1075, supra Note 6, at 116. Again, the Senator reemphasized his point on the floor of the Senate, saying:“To insure that the policies and goals defined in this act are infused into the ongoing programs and actions of the FederalGovernment, the act also established some important ‘action-forcing’ procedures.” 115 Cong.Rec. (Part 30) at 40416. TheSenate Committee on Interior and Insular Affairs Committee Report on NEPA also stressed the importance of the “action-forcing” provisions which require full and rigorous consideration of environmental.

8 The word “appropriate” in § 102(2) (B) cannot be interpreted to blunt the thrust of the whole Act or to give agencies broaddiscretion to downplay environmental factors in their decision making processes. The Act requires consideration “appropriate”to the problem of protecting our threatened environment, not consideration “appropriate” to the whims habits or otherparticular concerns of federal agencies. See Note 5 supra.

9 Senator Jackson specifically recognized the requirement of a balancing judgment. He said on the floor of the Senate:“Subsection 1O2(b) requires the development of procedures designed to insure that all relevant environmental values andamenities are considered in the calculus of project development and decisionmaking. Subsection 102(c) establishes aprocedure designed to insure that in instances where a proposed major Federal action would have a significant impact onthe environment that the impact has in fact been considered, that any adverse effects which cannot be avoided are justifiedby some other stated consideration of national policy, that short-term uses are consistent with long-term productivity, andthat any irreversible and irretrievable commitments of resources are warranted.” 115 Cong.Rec. (Part 21) 29055 (1969).

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removed from the initial process to evaluate andbalance the factors on their own.

Of course, all of the Section 102 duties are qualifiedby the phrase “to the fullest extent possible.” We muststress as forcefully as possible that this language doesnot provide an escape hatch for footdragging agencies;it does not make NEPA’s procedural requirementssomehow “discretionary.” Congress did not intend theAct to be such a paper tiger. Indeed, the requirementof environmental consideration “to the fullest extentpossible” sets a high standard for the agencies, astandard which must be rigorously enforced by thereviewing courts.

Unlike the substantive duties of Section 101 (h), whichrequire agencies to “use all practicable meansconsistent with other essential considerations,” theprocedural duties of Section 102 must be fulfilled tothe “fullest extent possible.”1 0 This contrast, in itself,is revealing. But the dispositive factor in ourinterpretation is the expressed views of the Senate andHouse conferees who wrote the “fullest extentpossible” language into NEPA. They stated:1 1

‘The purpose of the new language is to make itclear that each agency of the FederalGovernment shall comply with the directivesset out in [Section 102(2)] unless the existinglaw applicable to such agency’s operationsexpressly prohibits or makes full compliancewith one of the directives impossible. Thus, it

is the intent of the conferees that the provision‘to the fullest extent possible’ shall not be usedby any Federal agency as a means of avoidingcompliance with the directives set out in section102. Rather, the language in section 102 isintended to assure that all agencies of theFederal Government shall comply with thedirectives set out in the said section ‘to the fullestextent possible’ under their statutoryauthorizations and that no agency shall utilizean excessively narrow construction of itsexisting statutory authorizations to avoidcompliance.”

Thus Section 102 duties are not inherently flexible.They must be complied with to the fullest extent, unlessthere is a clear conflict of statutory authority.1 2

Considerations of administrative difficulty, delay oreconomic, cost will not suffice to strip the section ofits fundamental importance.

We conclude, then, that Section 102 of NEPA mandatesa particular sort of careful and informeddecisionmaking process arid creates judiciallyenforceable duties. The reviewing courts probablycannot reverse a substantive decision on its merits,under Section 101, unless it be shown that the actualbalance of costs and benefits that was struck wasarbitrary or clearly gave insufficient weight toenvironmental values. But if the decision was reachedprocedurally without individualized consideration andbalancing of environmental factors conducted fully and

10 The Commission, arguing before this court, has mistakenly confused the two standards using the § 101(b) language tosuggest that it has broad discretion in performance of § 102 procedural duties. We stress the necessity to separate the two,substantive and procedural, standards. See text at page 1128 infra.

11 The Senators’ views are contained in “Major Changes in S.1075 as passed by the Senate”, 115 Cong.Rec.( Part 30) at40418. The Representatives’ views are contained in a separate filed statement filed with the Conference Report, 115Cong.Rec.( Part 29) 39703 (1969).

12 Section 104 of NEPA provides that the Act does not eliminate any duties already imposed by other “specific statutoryobligations.” Only when such specific obligations conflict with NEPA do agencies have a right under § 104 and the “fullestextent possible” language to dilute their compliance with the full letter and spirit of the Act. See text at page 1123 infra.Sections 103 and 105 also support the general interpretation that the “fullest extent possible” language exempts agenciesfrom full compliance only when there is a conflict of statutory obligations. Section 103 provides for agency review ofexisting obligations in order to discover and, if possible, correct any conflicts. See text at pages 1020-1021 infra. And § 105provides that “the policies and goals set forth in this Act are supplementary to those set forth in existing authorizations ofFederal agencies. “The report of the House conferees states that § 105 “does not obviate the requirement that the Federalagencies conduct their activities in accordance with the provisions of this bill unless to do so would clearly violate theirexisting statutory obligations.” 115 Cong.Rev. (Part 29) at 39703. The section-by-section analysis by the Senate confereesmakes exactly the same point in slightly different language. 115 Cong.Rec. (Part 30) at 40418. The guidelines published bythe Council on Environmental Quality state that “the phrase ‘to the fullest extent possible’ is meant to make clear that eachagency of the Federal Government shall comply with the requirement unless existing law applicable to the agency’s operationsexpressly prohibits or makes compliance impossible.” 36 Fed.Reg at 7724.

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in good faith, it is the responsibility of the courts toreverse. As one District Court has said of Section 102requirements:

“It is hard to imagine a clearer or stronger mandate tothe Courts.”1 3

In the cases before us now, we do not have to review aparticular decision by the Atomic Energy Commissiongranting a construction permit or an operating license.Rather, we must review the Commission’s recentlypromulgated rules which govern consideration ofenvironmental values in all such individualdecisions.1 4The rules were devised strictly in order tocomply with the NEPA procedural requirements, butpetitioners argue that they fall far short of thecongressional mandate.

The period of the rules gestation does not indicate overenthusiasm on the Commission’s part. NEPA went intoeffect on January I, 1970. On April 2, 1970-threemonths later, the Commission issued its first, shortpolicy statement on implementation of the Act’sprocedural provisions.1 5 After another span of twomonths, the Commission published a notice of

proposed rule making in the Federal Register.1 6

Petitioners submitted substantial comments critical ofthe proposed rules. Finally, on December 3, 1970, theCommission terminated its long rule makingproceeding by issuing a formal amendment, labeledAppendix D, to its governing regulations. 1 7 AppendixD is a somewhat revised version of the earlier proposaland, at last, commits the Commission to considerenvironmental impact in its decision making process.

The procedure for environmental study andconsideration set up by the Appendix D rules asfollows: Each applicant for an initial constructionpermit must submit to the Commission his own“environmental report,” presenting his assessment ofthe environmental impact of the planned facility andpossible alternatives, which would alter the impact.When construction is completed and the applicantapplies for a license to operate the new facility, hemust again submit an “environmental report” notingany factors which have changed since the originalreport. At each stage, the Commission’s regulatory staffmust take the applicant’s report and prepare its own“detailed statement” of environmental costs, benefitsand alternatives. The statement will then be circulated

13 Texas Committee on Natural Resources v. United States, W.D.Tex., I Envir. Rpts-Cas. 1303, 1304 (1970). A few of thecourts, which have considered NEPA to date, have made statements stressing the discretionary aspects of the Act. See, e.g.,Pennsylvania Environmental Council v. Bartlett, M.D.Pa., 315 F. Supp. 238 (1970); Bucklein v. Volpe, N.D.Cal., 2 Envir.Rpts-Cas. 1082, 1083 (1970). The Commission and intervenors rely upon these statements quite heavily. However, theirreliance is misplaced, since the courts in question were not referring to the procedural duties created by NEPA. Rather, theywere concerned with the Act’s substantive goals or with such peripheral matters as retroactive application of the Act.

The general interpretation of NEPA, which we outline in text at page 1112 supra, is fully supported by the scholarlycommentary. See, e.g., Donovan, The Federal Government and Environmental Control: Administrative Reform on theExecutive Level, 12 B.C.lnd. & Com.LRev. 541 (1971); Hanks & Hanks, An Environmental Bill of Rights: The CitizenSuit and the National Environmental Policy Act of 1969, 24 Rutg. Rev. 231 (1970); Sive, Some Thoughts of an EnvironmentalLawyer in the Wilderness of Administrative Law, 70 Colum. LRev. 612, 643-650 (1970); Peterson, An Analysis of Title I ofthe National Environmental Policy Act of 1969, I Envir.LRptr. 50035 (1971); Yannacone, National Environmental PolicyAct of 1969, I Envir.Law 8 (1970); Note, The National Environmental Policy Act: A Sheep in Wolf’s Clothing?, 37 BrooklynLRev. 139 (1970).

14 In Case No. 24,871, petitioners attack four aspects of the Commission’s rules, which are outlined in text. In Case No.24,839, they challenge a particular application of the rules in the granting of a particular construction permit-that for theCalvert Cliffs Nuclear Power Plant. However, their challenge consists largely of an attack on the substance of one aspect ofthe rules also attacked in Case No. 24,871. Thus we are able to resolve both cases together, and our remand to the Commissionfor further rule making includes a remand for further consideration relating to the Calvert Cliffs Plant in Case No. 24,839.See Part V of this opinion, infra.

15 35 Fed.Reg. 5463 (April 2, 1970).

16 35 Fed.Reg. 8594 (June 3, 1970).

17 35 Fed.Reg. 18469 (December 4, 1970). The version of the rules finally adopted is now printed in 10 C.F.R. § 50,App. D, pp. 246-250 (1971).

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to other interested and responsible agencies and madeavailable to the public. After comments are receivedfrom those sources, the staff must prepare a final“detailed statement” and make a final recommendationon the application for a construction permit oroperating license.

Up to this point in the Appendix D rules, petitionershave raised no challenge. However, they do attack fourother, specific parts of the rules, which, they say, violatethe requirements of Section 102 of NEPA. Each ofthese parts in some way limits full consideration andindividualized balancing of environmental values inthe Commission’s decision making process. (I)Although environmental factors must be consideredby the agency’s regulatory staff under the rules, suchfactors need not be considered by the hearing boardconducting an independent review of staffrecommendations, unless affirmatively raised byoutside parties or staff members. (2) Another part ofthe procedural rules prohibits any such party fromraising non-radiological environmental issues at anyhearing if the notice for that hearing appeared in theFederal Register before March 4, 1971. (3) Moreover,the hearing board is prohibited from conducting anindependent evaluation and balancing of certainenvironmental factors if other responsible agencieshave already certified that their own environmentalstandards are satisfied by the proposed federal action.(4) Finally, the Commission’s rules provide that whena construction permit for a facility has been issuedbefore NEPA compliance was required and when anoperating license has yet to be [** 19] issued, theagency will not formally consider environmentalfactors or require modifications in the proposed facilityuntil the time of the issuance of the operating license.Each of these parts of the Commission’s rules will bedescribed at greater length and evaluated under NEPAin the following sections of this opinion.

NEPA makes only one specific reference toconsideration of environmental values in agencyreview processes. Section 102(2) (C) provides thatcopies of the staff’s “detailed statement” and commentsthereon “shall accompany the proposal through theexisting agency review processes.” The Atomic Energy

Commission’s rules may seem in technical compliancewith the letter of that provision. They state:

“12. If any party to a proceeding * * * raisesany [environmental] issue, the Applicant’sEnvironmental Report and the DetailedStatement will be offered in evidence. Theatomic safety and licensing board will makefindings of fact on, and resolve, the mattersin controversy among the parties with regardto those issues. Depending on the resolutionof those issues, the permit or license may begranted, denied, or appropriately conditionedto protect environmental values.

“13. When no party to a proceeding * * *raises any [environmental] issue such issueswill not be considered by the atomic safetyand licensing board. Under suchcircumstances, although the Applicant’sEnvironmental Report, comments thereon,and the Detailed Statement will accompanythe application through the Commission’sreview processes, they will not be receivedin evidence, and the Commission’sresponsibilities under the NationalEnvironmental Policy Act of 1969 will becarried out in toto outside the hearingprocess.”1 8

The question here is whether the Commission is correctin thinking that its NEPA responsibilities may “becarried out in toto outside the hearing process” whetherit is enough that environmental data and evaluationsmerely “accompany” an application through the reviewprocess, but receive no consideration whatever fromthe hearing board.

We believe that the Commission’s crabbedinterpretation of NEPA makes a mockery of the Act.What possible purpose could there be in the Section102 (2) (C) requirement (that the “detailed statement”accompany proposals through agency reviewprocesses) if “accompany” means no more thanphysical proximity-mandating no more than the

18 IOCF.R.§50,App.D,at249.

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physical act of passing certain folders and papers,unopened, to reviewing officials along with otherfolders and papers? What possible purpose could therebe in requiring the “detailed statement” to be beforehearing boards, if the boards are free to ignore entirelythe contents of the statement? NEPA was meant to domore than regulate the flow of papers in the federalbureaucracy. The word “accompany” in Section 102(2)(C) must not be read so narrowly as to make the Actludicrous. It must, rather, be read to indicate acongressional intent that environmental factors, ascompiled in the “detailed statement,” be consideredthrough agency review processes.1 9

Beyond Section 102(2) (C), NEPA requires thatagencies consider the environmental impact of theiractions “to the fullest extent possible.” The Act isaddressed to agencies as a whole, not only to theirprofessional staffs. Compliance to the “fullest”possible extent would seem to demand thatenvironmental issues be considered at every importantstage in the decision making process concerning aparticular action-at every stage where an overallbalancing of environmental and non-environmentalfactors is appropriate and where alterations might bemade in the proposed action to minimizeenvironmental costs. Of course, consideration, whichis entirely duplicative, is not necessarily required. Butindependent review of staff proposals by hearingboards is hardly a duplicative function. A trulyindependent review provides a crucial check on thestaff’s recommendations. The Commission’s hearingboards automatically consider non-environmentalfactors, even though they have been previously studiedby the staff. Clearly, the review process is anappropriate stage at which to balance conflictingfactors against one another. And, just as clearly, itprovides an important opportunity to reject orsignificantly modify the staff’s recommended action.Environmental factors, therefore, should not be singledout and excluded, at this stage, from the proper balanceof values envisioned by NEPA.

The Commission’s regulations provide that in anuncontested proceeding, the hearing board shall on itsown “determine whether the application and the“record of the proceeding contain sufficientinformation, and the review of the application by theCommission’s regulatory staff has been adequate, tosupport affirmative findings on” various nonenvironmental factors.2 0 NEPA requires at least asmuch automatic consideration of environmentalfactors. In uncontested hearings, the board need notnecessarily go over the same ground covered in the“detailed statement.” But it must at least examine thestatement carefully to determine whether “the review* * * by the Commission’s regulatory staff has beenadequate.” And it must independently consider the finalbalance among conflicting factors that is struck in thestaff’s recommendation.

The rationale of the Commission’s limitation ofenvironmental issues to hearings in which partiesaffirmatively raise those issues may have been one ofeconomy. It may have been supposed that, wheneverthere are serious environmental costs overlooked oruncorrected by the staff, some party will intervene tobring those costs to the hearing board’s attention. Ofcourse, independent review of the “detailed statement”and independent balancing of factors in an uncontestedhearing will take some time. If it is done properly, itwill take a significant amount of time. But all of theNEPA procedures take time. Such administrative costsare not enough to undercut the Act’s requirement thatenvironmental protection be considered “to the fullestextent possible,” see text at page 1114, supra. It is,moreover, unrealistic to assume that there will alwaysbe an intervenor with the information, energy andmoney required to challenge a staff recommendation,which ignores environmental costs. NEPA establishesenvironmental protection as an integral part of theAtomic Energy Commission’s basic mandate. Theprimary responsibility for fulfilling that mandate lieswith the Commission. Its responsibility is not simplyto sit back, like an umpire, and resolve adversary

19 The guidelines issued by the Council on Environmental Quality emphasize the importance of consideration of alternativesto staff recommendations during the agency review process: “A rigorous exploration and objective evaluation of alternativeactions that might avoid some or all of the adverse environmental effects is essential. Sufficient analysis of such alternativesand their costs and impact on the environment should accompany the proposed action through the agency review process inorder not to foreclose prematurely options which might have less detrimental effects” 36 Fed.Reg. at 7725. The Councilalso states that an objective of its guidelines is “to assist agencies in implementing not only the letter, but the spirit, of theAct” Id. at 7724.

20 10 C.F.R. § 2.l04(b) (2) (1971).

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contentions at the hearing stage. Rather, it must itselftake the initiative of considering environmental valuesat every distinctive and comprehensive stage of theprocess beyond the staff ’s evaluation andrecommendation.2 1

Congress passed the final version of NEPA in late 1969,and the Act went into full effect on January 1, 1970.Yet the Atomic Energy Commission’s rules prohibitany consideration of environmental issues by itshearing boards at proceedings officially noticed beforeMarch 4, 1971.2 2This is 14 months after the effectivedate of NEPA. And the hearings affected may go onfor as much as a year longer until final action is taken.The result is that the Commission, without full NEPAcompliance, may take major federal actions having asignificant environmental impact more than two yearsafter the Act’s effective date. In view of the importanceof environmental consideration during the agencyreview process (see Part II supra), such a time lag isshocking.

The Commission explained that its very long time lagwas intended “to provide an orderly period of transitionin the conduct of the Commission’s regulatoryproceedings and to avoid unreasonable delays in theconstruction and operation of nuclear power plantsurgently needed to meet the national requirements forelectric power.”2 3 Before this court, it has claimedauthority for its action, arguing that “the statute did

not lay down detailed guidelines and inflexibletimetables for its implementation; and we find in it nobar to agency provisions which are designed toaccommodate transitional implementationproblems.”2 4

Again, the Commission’s approach to statutoryinterpretation is indeed so strange, it seems to reveala rather thoroughgoing reluctance to meet the NEPAprocedural obligations in the agency review process,the stage at which deliberation is most open to publicexamination and subject to the participation of publicintervenors. The Act, it is true, lacks an “inflexibletimetable” for its implementation. But it does have aclear effective date, consistently enforced [**28] byreviewing courts up to now. Every federal court havingfaced the issues has held that the proceduralrequirements of NEPA must be met in order to upholdfederal action taken after January 1, 1970.2 5 Theabsence of a “timetable” for compliance has never beenheld sufficient, in itself, to put off the date on which acongressional mandate takes effect. The absence of a“timetable,” indicates that compliance is requiredforthwith.

The only part of the Act which implies thatimplementation may be subject, in some cases, to somesignificant delay is Section 103. There, Congressprovided that all agencies must review “their presentstatutory authority, administrative regulations, and

21 In recent years, the courts have become increasingly strict in requiring that federal agencies live up to their mandates toconsider the public interest. They have become increasingly impatient with agencies, which attempt to avoid or dilute theirstatutorily imposed role as protectors of public interest values beyond the narrow concerns of industries being regulated.See, e.g., Udall v. FPC, 387 U.S. 428, 87 S. Ct. 1712, 18 L. Ed. 2d 869 (1967); Environmental Defense Fund, Inc. v.Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971); Moss v. C. A. B., 139 U.S.App.D.c. 150,430 F.2d 891 (1970);Environmental Defense Fund, Inc. v. U. S. Dept. of H. E. & W, 138 U.S.App.D.C. 381, 428 F.2d 1083 (1970). In commentingon the Atomic Energy Commission’s pre-NEPA duty to consider health and safety matters, the Supreme Court said “theresponsibility for safeguarding health and safety belongs under the statute to the Commission.” Power ReactorDevelopment Co. v. International Union of Elec., Radio and Mach. Workers, 367 U.S. 396,404,81 S. Ct. 1529, 1533,6 L.Ed. 2d 924 (1961). The Second Circuit has made the same point regarding the Federal Power Commission: “In this case, asin many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to actas an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive activeand affirmative protection at the hands of the Commission.” Scenic Hudson Preservation Conference v. FPC, 2 Cir., 354F.2d 608,620 (1965).

22 10 C.F.R. § 50, App. D, at 249.

23 35 Fed.Reg. 18470 (December 4, 197O).

24 Brief for respondents in No. 24,871 at 49.25 In some cases, the courts have had a difficult time determining whether particular federal actions were “taken” before orafter January I, 197O. But they have all started from the basic rule that any action taken after that date must comply withNEPA’s procedural requirements. See Note, Retroactive Application of the National Environmental Policy Act of 1969,69Mich.L.Rev. 732 (1971), and cases ‘cited therein. Clearly, any hearing held between January I, 197O and March 4, ] 971which culminates in the grant of a permit or license is a federal action taken after the Act’s effective date.

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current policies and procedures for the purpose ofdetermining whether there are any deficiencies orinconsistencies therein which prohibit full compliance”with NEPA. Agencies finding some such insuperabledifficulty are obliged to “propose to the President notlater than July 1, 1971, such measures as may benecessary to bring their authority and policies intoconformity with the intent, purposes, and proceduresset forth in this Act.”

The Commission cannot justify its time lag under theseSection 103 provisions. Indeed, it has not attemptedto do so; only intervenors have raised the argument.Section 103 could support a substantial delay only byan agency, which discovered an insuperable barrier tocompliance with the Act and required time to formulateand propose the needed reformative measures. Theactual review of existing statutory authority andregulations cannot be a particularly lengthy process[**30] for experienced counsel of a federal agency.Of course, the Atomic Energy Commission discoveredno obstacle to NEPA implementation. Although it didnot report its conclusion to the President until October2, 1970, that nine-month delay (January to October)cannot justify so long a period of noncompliance withthe Act. It certainly cannot justify a further delay ofcompliance until March 4, 1971.

No doubt the process of formulating procedural rulesto implement NEPA takes some time. Congress cannothave expected that federal agencies would immediatelybegin considering environmental issues on January 1,1970. But the effective date of the Act does set a timefor agencies to begin adopting rules and it demandsthat they strive, “to the fullest extent possible,” to beprompt in the process. The Atomic Energy Commissionhas failed in this regard.2 6 Consideration ofenvironmental issues in the agency review process, forexample, is quite clearly compelled by the Act.2 7 TheCommission cannot justify its II-month delay inadopting rules on this point as part of a difficult,discretionary effort to decide whether or not its hearingboards should deal with environmental questions atall.

Even if the long delay had been necessary, however,the Commission would not be relieved of all NEPAresponsibility to hold public hearings on theenvironmental consequences of actions taken betweenJanuary 1, 1970 and final adoption of the rules.Although the Act’s effective date may not requireinstant compliance, it must at least require that NEPAprocedures, once established, be applied to considerprompt alterations in the plans or operations offacilities approved without compliance.2 8 Yet the

26 See text at page 1116 supra.

27 As early as March 5, 1970, President Nixon stated in an executive order that NEPA requires consideration of environmentalfactors at public hearings. Executive Order 11514, 35 Fed.Reg. 4247 (March 5, 1970). See also Part II of this opinion.

28 In Part V of this opinion, we hold that the Commission must promptly consider the environmental impact of projectsinitially approved before January I, 1970 but not yet granted an operating license. We hold that the Commission may notwait until construction is entirely completed and consider environmental factors only at the operating license hearings;rather, before environmental damage has been irreparably done by full construction of a facility, the Commission mustconsider alterations in the plans. Much the same principle of making alterations while they still may be made at relativelysmall expense-applies to projects approved without NEPA compliance after the Act’s effective date. A total reversal of thebasic decision to construct a particular facility or take a particular action may then be difficult, since substantial resourcesmay already have been committed to the project. Since NEPA must apply to the project in some fashion, however, it isessential that it applies as effectively as possible-requiring alterations in parts of the project to which resources have not yetbeen inalterably committed at great expense. One District Court has dealt with the problem of instant compliance withNEPA. It suggested another measure which agencies should take while in the process of developing rules. It said: “TheNEPA does not require the impossible. Nor would it require, in effect, a moratorium on all projects, which had an environmentalimpact while awaiting compliance with § 102(2) (B). It would suffice if the statement pointed out this deficiency. Thedecision makers could then determine whether any purpose would be served in delaying the project while awaiting thedevelopment of such criteria.” Environmental Defense Fund, Inc. v. Corps of Engineers, E.D.Ark., 325 F. Supp. 749, 758(1971). Apparently, the Atomic Energy Commission did not even go this far toward considering the lack of a NEPA publichearing as a basis for delaying projects between the Act’s effective date and adoption of the rules. Of course, on the facts ofthese cases, we need not express any final view on the legal effect of the Commission’s failure to comply with NEPA afterthe Act’s effective date. Mere post hoc alterations in plans may not be enough, especially in view of the Commission’s longdelay in promulgating rules. Less than a year ago, this court was asked to review a refusal by the Atomic Energy Commissionto consider environmental factors in granting a license. We held that the case was not yet ripe for review. But we stated: “Ifthe Commission persists in excluding such evidence, it is courting the possibility that if error is found a court will reverse itsfinal order, condemn its proceeding as so much waste motion, and order that the proceeding be conducted over again in waythat realistically permits de novo consideration of the tendered evidence.” Thermal Ecology Must be Preserved v. AEC, 139U.S.App.D.C. 366, 368, 433 F.2d 524, 526 (1970).

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Commission’s rules contain no such provision. Indeed,they do not even apply to the hearings still beingconducted at the time of their adoption on December3, I 970-0r, for that matter, to hearings [**32] initiatedin the following three months.

The delayed compliance date of March 4th 1971, then,cannot be justified by the Commission’s long drawnout rule making process.

Strangely, the Commission has principally relied onmore pragmatic arguments. It seems an unfortunateaffliction of large organizations to resist newprocedures and to envision massive roadblocks to theiradoption. Hence the Commission’s talk of the needfor an “orderly transition” to the NEPA procedures. Itis difficult to credit the Commission’s argument thatseveral months were needed to work the considerationof environmental values into its review process. Beforethe enactment of NEPA, the Commission already hadregulations requiring that hearings include health,safety and radiological matters.2 9 The introduction ofenvironmental matters cannot have presented aradically unsettling problem. And, in any event, theobvious sense of urgency on the part of Congressshould make clear that a transition, however “orderly,”must proceed at a pace faster than a funeral procession.

In the end, the Commission’s long delay seems basedupon what it believes to be a pressing national powercrisis. Inclusion of environmental issues in pre-March4th, 1971 hearings might have held up the licensing ofsome power plants for a time. But the very purpose ofNEPA was to tell federal agencies that environmentalprotection is as much a part of their responsibility asis protection and promotion of the industries theyregulate. Whether or not the spectre of a national powercrisis is as real as the Commission apparently believes,it must not be used to create a blackout ofenvironmental consideration in the agency review

process. NEPA compels a case-by-case examinationand balancing of discrete factors. Perhaps there maybe cases in which the need for rapid licensing of aparticular facility would justify a strict time limit on ahearing board’s review of environmental issues; but ablanket banning of such issues until March 4, 1971 isimpermissible under NEPA.

The sweep of NEPA is extraordinarily broad,compelling consideration of any and all types ofenvironmental impact of federal action. However, theAtomic Energy Commission’s rules specificallyexclude from [**35] full consideration a wide varietyof environmental issues. First, they provide that noparty may raise and the Commission may notindependently examine any problem of water quality-perhaps the most significant impact of nuclear powerplants. Rather, the Commission indicates that it willdefer totally to water quality standards devised andadministered by state agencies and approved by thefederal government under the Federal Water PollutionControl Act.3 0 Secondly, the rules provide for similarabdication of NEPA authority to the standards of otheragencies:

“With respect to those aspects of environmental qualityfor which environmental quality standards andrequirements have been established by authorizedFederal, State, and regional agencies, proof that theapplicant is equipped to observe and agrees to observesuch standards and requirements will be considered asatisfactory showing that there will not be a significant,adverse effect on the environment. Certification by theappropriate agency that there is reasonable assurancethat the applicant for the permit or license will observesuch standards and requirements will be considereddispositive for this purpose.”3 1 The most theCommission will do is include a condition in allconstruction permits and operating licenses requiringcompliance with the water quality or other standards

29 See 10 C.F.R. § 20 (197 I) for the standards which the Commission had developed to deal with radioactive emissionswhich might pose health or safety problems.

30 10 C.F.R. § 50, App. D, at 249. Appendix D does require that applicants’ environmental reports and the Commission’s“detailed statements” include “a discussion of the water quality aspects of the proposed action,” Id. at 248. But, as is statedin text, it bars independent consideration of those matters by the Commission’s reviewing boards at public hearings. It alsobars the Commission from requiring-or even considering any water protection measures not already required by the approvingstate agencies. See Note 31 infra.

The section of the Federal Water Pollution Control Act establishing a system of state agency certification is § 21, asamended in the Water Quality Improvement Act of 1970. 33 U.S.c.A. § 1171 (1970). In text below, this section is discussedas part of the Water Quality Improvement Act.

31 IO C..F.R.§50,AppDat249.

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set by such agencies. 3 2 The upshot is that the NEPAprocedures, viewed by the Commission as superfluous,will wither away in disuse, applied only to thoseenvironmental issues wholly unregulated by any otherfederal, state or regional body.

We believe the Commission’s rule is in fundamentalconflict with the basic purpose of the Act. NEPAmandates a case-by-case balancing judgment on thepart of federal agencies. In each individual case, theparticular economic and technical benefits of plannedaction must be assessed and then weighed against theenvironmental costs; alternatives must be consideredwhich would affect the balance of values. See text atpage 1113 supra. The magnitude of possible benefitsand possible costs may lie anywhere on a broadspectrum. Much will depend on the particularmagnitudes involved in particular cases. In some cases,the benefits will be great enough to justify a certainquantum of environmental costs; in other cases, theywill not be so great and the proposed action may haveto be abandoned or significantly altered so as to bringthe benefits and costs into a proper balance. The pointof the individualized balancing analysis is to ensurethat, with possible alterations, the optimally beneficialaction is finally taken.

Certification by another agency that its ownenvironmental standards are satisfied involves anentirely different kind of judgment. Such agencies,without overall responsibility for the particular federalaction in question, attend only to one aspect of theproblem: the magnitude of certain environmental costs.They simply determine whether those costs exceed anallowable amount. Their’ certification does not meanthat they found no environmental damage whatever.In fact, there may be significant environmental damage(e.g., water pollution), but not quite enough to violateapplicable (e.g., water quality) standards. Certifyingagencies do not attempt to weigh that damage againstthe opposing benefits. Thus the balancing analysisremains to be done. It may be that the environmentalcosts, though passing prescribed standards, arenonetheless great enough to outweigh the economicand technical benefits involved in the planned action.The only agency in a position to make such judgmentis that with overall responsibility for the proposedfederal action-the agency to which NEPA is specificallydirected.

The Atomic Energy Commission, abdicating entirelyto other agencies’ certifications, neglects the mandatedbalancing analysis. Concerned members of the public

are thereby precluded from raising a wide range ofenvironmental issues in order to affect particularCommission decisions. And the special purpose ofNEPA is subverted.

Arguing before this court, the Commission made muchof the special environmental expertise of the agencies,which set environmental standards. NEPA did notoverlook this consideration. Indeed, the Act is quiteexplicit in describing the attention, which is to be givento the views and standards of other agencies. Section102 (2) (C) provides:

“Prior to making any detailed statement, theresponsible Federal official shall consult withand obtain the comments of any Federalagency which has jurisdiction by law orspecial expertise with respect to anyenvironmental impact involved. Copies ofsuch statement and the comments and viewsof the appropriate Federal, State, and localagencies, which are authorized to develop andenforce environmental standards, shall bemade available to the President, the Councilon Environmental Quality and to the public.”

Thus the Congress was surely cognizant of federal,state and local agencies “authorized to develop andenforce environmental standards.” But it provided, inSection 102(2) (C), only for full consultation. It mostcertainly did not authorize a total abdication to thoseagencies. Nor did it grant a license to disregard themain body of NEPA obligations. Of course, federalagencies such as the Atomic Energy Commission mayhave specific duties, under acts other than NEPA, toobey particular environmental standards. Section 104of NEPA makes clear that such duties are not to beignored:

“Nothing in Section 102 or 103 shall in anyway affect the specific statutory obligationsof any Federal agency (1) to comply withcriteria or standards of environmental quality,(2) to coordinate or consult with any otherFederal or State agency, or (3) to act, or refrainfrom acting contingent upon therecommendations or certification of any otherFederal or State agency.”

On its face, Section 104 seems unextraordinary,intended only to see that the general procedural reformsachieved in NEPA do not wipe out the more specificenvironmental controls imposed by other statutes.

32 Ibid.

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Ironically, the Commission argues that Section 104 infact allows other statutes to wipe out NEPA.

Since the Commission places great reliance on Section104 to support its abdication to standard settingagencies, we should first note the section’s obviouslimitation. It deals only with deference to suchagencies, which is compelled by “specific statutoryobligations.” The Commission has brought to ourattention one “specific statutory obligation;” the WaterQuality Improvement Act of 1970 (WQIA).3 3 That Actprohibits federal licensing bodies, such as the AtomicEnergy Commission, from issuing licenses for facilitieswhich pollute “the navigable waters of the UnitedStates” unless they receive a certification from theappropriate agency that compliance with applicablewater quality standards is reasonably assured. ThusSection 104 applies in some fashion to considerationof water quality matters. But it cannot support and isnot even relevant to the Commission’s wholesaleabdication to the standards and certifications of anyand all federal, state and local agencies dealing withmatters other than water quality.

As to water quality, Section 104 and WQIA clearlyrequire obedience to standards set by other agencies.But obedience does not imply total abdication. Indeed,the language of Section 104 does not authorize anabdication. It does not suggest that other “specificstatutory obligations” will entirely replace NEPA.Rather, it ensures that three sorts of “obligations” willnot be undermined by NEPA: (I) the obligation to“comply” with certain standards, (2) the obligation to“coordinate” or “consult” with certain agencies, and(3) the obligation to “act, or refrain from actingcontingent upon” a certification from certain agencies.WQIA imposes the third sort of obligation. It makesthe granting of a license by the Commission“contingent upon” a water quality certification. But itdoes not require the Commission to grant a license

once a certification has been issued. It does notpreclude the Commission from demanding waterpollution controls from its licensees which are morestrict than those demanded by the applicable waterquality standards of the certifying agency.3 4 It is veryimportant to understand [* 1125] these facts aboutWQIA, ‘For all that Section 104 [**43] of NEPA doesis to reaffirm other “specific statutory obligations.”Unless those obligations are plainly mutually exclusivewith the requirements of NEPA, the specific mandateof NEPA must remain in force. That is, Section 104can operate to relieve an agency of its NEPA dutiesonly if other “specific statutory obligations” clearlypreclude performance of those duties.

Obedience to water quality certifications under WQIAis not mutually exclusive with the NEPA procedures.It does not preclude performance of the NEPA duties.Water quality certifications essentially establish aminimum condition for the granting of a license. Butthey need not end the matter. The Commission canthen go on to perform the very different operation ofbalancing the overall benefits and costs of a particularproposed project, and consider alterations (above andbeyond the applicable water quality standards) whichwould further reduce environmental damage. Becausethe Commission can still conduct the NEPA balancinganalysis, consistent with WQIA, Section 104 does notexempt it from doing so, and it, therefore must conductthe obligatory analysis as prescribed.

We believe the above result follows from the plainlanguage of Section 104 of NEPA and WQIA.However, the Commission argues that we should delvebeneath the plain language and adopt a significantlydifferent interpretation. It relies entirely upon certainstatements made by Senator Jackson and SenatorMuskie, the sponsors of NEPA and WQIArespectively.3 5 Those statements indicate that Section104 was the product of a compromise intended to

33 The relevant portion is 33 U.S.c.A. § 1171. See Note 30 supra.

34 The relevant language in WQIA seems carefully to avoid any such restrictive implication. It provides that “each Federalagency shall insure compliance with applicable water quality standards, U.S.C.A. § I 17l(a). It also provides that “no licenseor permit shall be granted until the certification required by this section has been obtained or has been waived. No licenseor permit shall be granted if certification has been denied:’ 33 U.S.c.A. § I 171(b) (I). Nowhere does it indicate thatcertification must be the final and only protection against unjustified water pollution a fully sufficient as well as a necessarycondition for issuance of a federal license or permit. We also take note of § 21 (c) of WQIA, which states: “Nothing in thissection shall be construed to limit the authority of any department or agency pursuant to any other provision of law torequire compliance with applicable water quality standards. * * *” 33 U.S.c.A. § I 171(c).

35 The statements by Senators Jackson and Muskie were made, first, at the time the Senate originally considered WQIA. 115Cong.Rec. (Part 21) at 29052-29056. Another relevant colloquy between the two Senators occurred when the Senateconsidered the Conference Report on NEPA. 115 Cong.Rec. (Part 30) at 40415-40425. Senator Muskie made a furtherstatement at the time of final Senate approval of the Conference Report on WQIA.116 Cong.Rec. (daily ed.) S4401 (March24, 1970).

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eliminate any conflict between the two bills then inthe Senate. The overriding purpose was to preventNEPA from eclipsing obedience to more specificstandards under WQIA. Senator Muskie, distrustfulof “self-policing by Federal agencies which pollute orlicense pollution,”was particularly concerned thatNEPA does not undercut the independent role of standard setting agencies.3 6 Most of his and Senator Jackson's comments stop short of suggesting that NEPA would have no application in water quality matters; their goal was to protect WQIA, not to undercut NEPA. Our interpretation of Section 104 is perfectly consistent with that purpose.

Yet the statements of the two Senators occasionallyindicate they were willing to go farther, to permitagencies such as the Atomic Energy Commission toforego at least some NEPA procedures in considerationof water quality. Senator Jackson, for example, said,“The compromise worked out between the billsprovides that the licensing agency will not have tomake a detailed statement on water quality if the Stateor other appropriate agency has made a certificationpursuant to (WQIA].”3 7 Perhaps SenatorJackson would have required some consideration andbalancing of environmental costs-despite the lack of aformal detailed statement but he did not spell out hisviews. No Senator, other than Senators Jackson andMuskie, addressed himself specifically to the problemduring floor discussion. Nor did any member of theHouse of Representatives.3 8 The section-by-sectionanalysis of NEPA submitted to the Senate clearly statedthe overriding purpose of Section 104: that “no agencymay substitute the procedures outlined in this Act formore restrictive and specific procedures establishedby law governing its activities.”3 9 The report does not

suggest there that NEPA procedures should be entirelyabandoned, but rather that they should not be“substituted” for more specific standards. In one rathercryptic sentence, the analysis does muddy the waterssomewhat, stating that “it is the intention that wherethere is no more effective procedure alreadyestablished, the procedure of this act will befollowed.”4 0 Notably, however, the sentence does notstate that in the presence of “more effectiveprocedures” the NEPA procedure will be abandonedentirely. It seems purposefully vague, quite possiblymeaning that obedience to the certifications of standardsetting agencies must alter, by supplementing, thenormal “procedure of this act.”

This rather meager legislative history in our viewcannot radically transform the purport of the plainwords of Section 104. Had the Senate sponsors fullyintended to allow a total abdication of NEPAresponsibilities in water quality matters-rather than asupplementing of them by strict obedience to thespecific standards of WQIA, the language of Section104 could easily have been changed. As the SupremeCourt often has said, the legislative history of a statute(particularly such relatively meager and vague historyas we have here) cannot radically affect itsinterpretation if the language of the statute is clear.See, e.g., Packard Motor Car Co. v. NLRB, 330 U.S485, 67 S. Ct. 789, 91 L. Ed. 1040 (1947); Kuehner v.Irving Trust Co., 299 U.S. 445, 57 S. Ct. 298, 81 L.Ed. 340 (1937); Fairport, Painesville & Eastern R.Co. v. Meredith, 292 U.S. 589, 54 S. Ct. 826, 78 L.Ed. 1446 (1934); Wilbur v. United States ex rel.Vindicator Consolidated Gold Mining Co., 284 U.S.231,52 S. Ct. 113, 76 L. Ed. 261 (1931). In a recentcase interpreting a veterans’ act, the Court set down

36 115 Cong.Rec. (Part 21) at 29053.

37 Ibid. See also id. at 29056. Senator Jackson appears not to have ascribed major importance to the compromise. He said,“It is my understanding that there was never any conflict between this section [of WQIA] and the provisions of [NEPA]. Ifboth bills were enacted in their present form, there would be a requirement for State certification, as well as a requirementthat the licensing agency make environmental findings.” Id. at 29053. He added, “The agreed-upon changes mentionedpreviously would change the language of some of these requirements, but their substance would remain relatively unchanged.”Id. at 29055. Senator Muskie seemed to give greater emphasis to the supposed conflict between the two bills. See id at29053; 115 Cong.Rec. (Part 30) at 40425; 116 Cong.Rec. (daily ed.) at S4401.

38 The Commission has called to our attention remarks made by Congressman Harsha. The Congressman did refer to astatement by Senator Muskie regarding NEPA, but it was a statement regarding application of the Act to establishedenvironmental control agencies, not regarding the relationship between NEPA and WQIA.115 Cong.Rec. (Part 30) at40927 -40928.

39 Id. at 40420.

40 Ibid.

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the principle which must govern our approach to thecase before us:

“Having concluded that the provisions of § Iare clear and unequivocal on their face, wefind no need to resort to the legislative historyof the Act. Since the State has placed suchheavy reliance upon that history, however, wedo deem it appropriate to point out that thishistory is at best inconclusive. It is true, as theState points out, that Representative Rankin,as Chairman of the Committee handling thebill on the floor of the House, expressed hisview during the course of discussion of thebill on the floor that the 1941 Act would notapply to [the sort of case in question]. But suchstatements, even when they stand alone, havenever been regarded as sufficiently compellingto justify deviation from the plain language ofa statute. United States v. Oregon, 366 U.S.643,648,81 S. Ct. 1278, 1281,6 L. Ed. 2d 575(1961). (Footnotes omitted.) It is, after all, theplain language of the statute, which all themembers of both houses of Congress mustapprove or disapprove. The courts should notallow that language to be significantlyundercut. In cases such as this one, the mostwe should do to interpret clear statutorywording is to see that the overriding purposebehind the wording supports its plain meaning.We have done that here. And we conclude thatSection 104 of NEPA does not permit the sortof total abdication of responsibility practicedby the Atomic Energy Commission.

Petitioners’ final attack is on the Commission’s rulesgoverning a particular set of nuclear facilities: thosefor which construction permits were granted withoutconsideration of environmental issues, but for whichoperating licenses have yet to be issued. Thesefacilities, still in varying stages of construction, includethe one of most immediate concern to one of thepetitioners: the Calvert Cliffs nuclear power plant onChesapeake Bay in Maryland.

The Commission’s rules recognize that the grantingof a construction permit before NEPA’s effective datedoes not justify bland inattention to environmentalconsequences until the operating license proceedings,perhaps far in the future. The rules require that

measures be taken now for environmental protection.Specifically, the Commission has provided for threesuch measures during the pre-operating license stage.First, it has required that a condition be added to allconstruction permits, “whenever issued,” which wouldoblige the holders of the permits to observe allapplicable environmental standards imposed by federalor state law. Second, it has required permit holders tosubmit their own environmental report on the facilityunder construction. And third, it has initiatedprocedures for the drafting of its staff’s “detailedenvironmental statement” in advance of operatinglicense proceedings.4 1

The one thing the Commission has refused to do istake any independent action based upon the materialin the environmental reports and “detailed statements.”Whatever environmental damage the reports andstatements may reveal, the Commission will allowconstruction to proceed on the original plans. It willnot even consider requiring alterations in those plans(beyond compliance with external standards, whichwould be binding in any event), though the “detailedstatements” must contain an analysis of possiblealternatives and may suggest relatively inexpensive buthighly beneficial changes. Moreover, the Commissionhas, as a blanket policy, refused to consider thepossibility of temporarily halting construction inparticular cases pending a full study of a facility’senvironmental impact. It has also refused to weigh thepros and cons of “back-fitting” for particular facilities(alteration of already constructed portions of thefacilities in order to incorporate new technologicaldevelopments designed to protect the environment).Thus reports and statements will be produced, butnothing will be done with them. Once again, theCommission seems to believe that the mere draftingand filing of papers is enough to satisfy NEPA.

The Commission appears to recognize the severelimitation, which its rules impose, on environmentalprotection. Yet it argues that full NEPA considerationof alternatives and independent action would causetoo much delay at the preoperating license stage. Itjustifies its rules as the most that is “practicable, inthe light of environmental needs and other essentialconsiderations of national policy’.”4 2 It cites, inparticular, the “national power crisis” as aconsideration of national policy militating againstdelay in construction of nuclear power facilities.

41 10 C.F.R. § 50, App. D, paras. 1,14.

42 Brief for respondents in No. 24,871 at 59.

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The Commission relies upon the flexible NEPAmandate to “use all practicable means consistent withother essential considerations of national policy.” Aswe have previously pointed out, however, that mandateapplies only to the substantive guidelines set forth inSection 101 of the Act. The procedural duties, theduties to give full consideration to environmentalprotection, are subject to a much more strict standardof compliance. By now, the applicable principle shouldbe absolutely clear.

NEPA requires that an agency must-to the fullest extentpossible under its other statutory obligations—consideralternatives to its actions which would reduceenvironmental damage. That principle establishes thatconsideration of environmental matters must be morethan a proforma ritual. Clearly, it is pointless to“consider” environmental costs without also seriouslyconsidering action to avoid them. Such a full exerciseof substantive discretion is required at every important,appropriate and non-duplicative stage of an agency’sproceedings.

The special importance of the pre-operating licensestage is not difficult to fathom. In cases whereenvironmental costs were not considered in granting aconstruction permit, it is very likely that the plannedfacility will include some features which do significantdamage to the environment and which could not havesurvived a rigorous balancing of costs and benefits.At the later operating license proceedings, thisenvironmental damage will have to be fully considered.But by that time the situation will have changedradically. Once a facility has been completelyconstructed, the economic cost of any alteration maybe very great. In the language of NEPA, there is likelyto be an “irreversible and irretrievable commitment ofresources,” which will inevitably restrict theCommission’s options. Either the licensee will haveto undergo a major expense in making alterations in acompleted facility or the environmental harm will haveto be tolerated. It is all too probable that the latter resultwould come to pass.

By refusing to consider requirement of alterations untilconstruction is completed, the Commission mayeffectively foreclose the environmental protectiondesired by Congress. It may also foreclose rigorousconsideration of environmental factors at the eventualoperating license proceedings. If “irreversible andirretrievable commitment[s] of resources” have alreadybeen made, the license hearing (and any publicintervention therein) may become a hollow exercise.This hardly amounts to consideration of environmentalvalues “to the fullest extent possible.”

A full NEPA consideration of alterations in the originalplans of a facility, then, is both important andappropriate well before the operating licenseproceedings. It is not duplicative if environmentalissues were not considered in granting the constructionpermit. And it need not be duplicated, absent newinformation or new developments, at the operatinglicense stage. In order that the pre-operating licensereview be as effective as possible, the Commissionshould consider very seriously the requirement of atemporary halt in construction pending its review andthe “backfitting” of technological innovations. For noaction which might minimize environmental damagemay be dismissed out of hand. Of course, finaloperation of the facility may be delayed thereby. Butsome delay is inherent whenever the NEPAconsideration is conducted-whether before or at thelicense proceedings. It is far more consistent with thepurposes of the Act to delay operation at a stage wherereal environmental protection may come about than ata stage where corrective action may be so costly as tobe impossible.

Thus we conclude that the Commission must go fartherthan it has in its present rules. It must consider action,as well as file reports and papers, at the pre-operatinglicense stage. As the Commission candidly admits, suchconsideration does not amount to a retroactiveapplication of NEPA. Although the projects in questionmay have been commenced and initially approvedbefore January 1, 1970, the Act clearly applies to themsince they must still pass muster before going into fulloperation. All we demand is that the environmentalreview be as full and fruitful as possible.

We hold that, in the four respects detailed above, theCommission must revise its rules governingconsideration of environmental issues. We do notimpose a harsh burden on the Commission. For werequire only an exercise of substantive discretion whichwill protect the environment “to the fullest extentpossible. “No less is required if the grand congressionalpurposes underlying NEPA are to become a reality.

Remanded for proceedings consistent with thisopinion.

APPENDIX

Public Law 91-190

91st Congress, S. 1075

January 1, 1970

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An Act

To establish a national policy for the environment, toprovide for the establishment of a Council onEnvironmental Quality, and for other purposes.

Be it enacted by the Senate and House ofRepresentatives of the United States of America inCongress assembled, that this Act may be cited as the“National Environmental Policy Act of 1969.”

PURPOSE

Sec. 2. The purposes of this Act are: To declare anational policy which will encourage productive andenjoyable harmony between man and his environment;to promote efforts which will prevent or eliminatedamage to the environment and biosphere andstimulate the health and welfare of man; to enrich theunderstanding of the ecological systems and naturalresources important to the Nation; and to establish aCouncil on Environmental Quality.

TITLE I

DECLARATION OF NATIONALENVIRONMENTAL POLICY

Sec. 101. (a) The Congress, recognizing the profound impact

of man’s activity on the interrelations of allcomponents of the natural environment, particularlythe profound influences of population growth, high-density urbanization, industrial expansion, resourceexploitation, and new and expanding technologicaladvances and recognizing further the criticalimportance of restoring and maintainingenvironmental quality to the overall welfare anddevelopment of man, declares that it is thecontinuing policy of the Federal Government, incooperation with State and local governments, andother concerned public and private organizations,to use all practicable means and measures, includingfinancial and technical assistance, in a mannercalculated to foster and promote the generalwelfare, to create and maintain conditions underwhich man and nature can exist in productiveharmony, and fulfill the social, economic, and otherrequirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act,it is the continuing responsibility of the FederalGovernment to use all practicable means, consistentwith other essential considerations of national

policy, to improve and coordinate Federal plans,functions, programs, and resources to the end thatthe Nation may:-1) fulfill the responsibilities of each generation

as trustee of the environment for succeedinggenerations;

2) assure for all Americans safe; healthful,productive, and esthetically and culturallypleasing surroundings;

3) attain the widest range of beneficial uses ofthe environment without degradation, risk tohealth or safety, or other undesirable andunintended consequences;

4) preserve important historic, cultural, andnatural aspects of our national heritage, andmaintain, wherever possible, an environmentwhich supports diversity and variety ofindividual choice;

5) achieve a balance between population andresource use which will permit highstandards of living and a wide sharing oflife’s amenities; and

6) enhance the quality of renewable resourcesand approach the maximum attainablerecycling of depletable resources.

(c) The Congress recognizes that each person shouldenjoy a healthful environment and that each personhas a responsibility to contribute to the preservationand enhancement of the environment.

Sec. 102.The Congress authorizes and directs that, to the fullestextent possible: (1) the policies, regulations, and publiclaws of the United States shall be interpreted andadministered in accordance with the policies set forthin this Act, and (2) all agencies of the FederalGovernment shall

a) utilize a systematic, interdisciplinary approachwhich will insure the integrated use of the naturaland social sciences and the environmental designarts in planning and in decisionmaking which mayhave an impact on man’s environment;

b) identify and develop methods and procedures, inconsultation with the Council on EnvironmentalQuality established by title II of this Act, whichwill insure that presently unquantifiedenvironmental amenities and values may be givenappropriate consideration in decision-makingalong with economic and technical considerations;

c) include in every recommendation or report onproposals for legislation and other major Federal

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actions [**62] significantly affecting the qualityof the human environment, a detailed statementby the responsible official on;i) the environmental impact of the proposed

action,ii) any adverse environmental effects which

cannot be avoided should the proposal beimplemented,

iii) alternatives to the proposed action,iv) the relationship between local short-term

uses of man’s environment and themaintenance and enhancement of long-term productivity, and

v) any irreversible and irretrievablecommitments of resources which wouldbe involved in the proposed action shouldit be implemented.

Prior to making any detailed statement, theresponsible Federal official shall consult with andobtain the comments of any Federal agency, whichhas jurisdiction by law or special expertise withrespect to any environmental impact involved.Copies of such statement and the comments andviews of the appropriate Federal, State, and localagencies, which are authorized to develop andenforce environmental standards, shall be madeavailable to the President, the Council onEnvironmental Quality and to the public asprovided by section 552 of title 5, United StatesCode, and shall accompany the proposal throughthe existing agency review processes;

d) study, develop, and describe appropriatealternatives to recommended courses of action inany proposal which involves unresolved conflictsconcerning alternative uses of available resources;

e) recognize the worldwide and long-range characterof environmental problems and, where consistentwith the foreign policy of the United States, lendappropriate support to initiatives, resolutions, andprograms designed to maximize internationalcooperation in anticipating and preventing adecline in the quality of mankind’s worldenvironment;

f) make available to States, counties, municipalities,institutions, and individuals, advice andinformation useful in restoring, maintaining, andenhancing the quality of the environment;

g) initiate and utilize ecological information in theplanning and development of resource-orientedprojects; and

h) assist the Council on Environmental Qualityestablished by title II of this Act.

Sec. 103All agencies of the Federal Government shall reviewtheir present statutory authority, administrativeregulations, and current policies and procedures forthe purpose of determining whether there areany deficiencies or inconsistencies therein whichprohibit full compliance with the purposes andprovisions of this Act and shall propose to the Presidentnot later than July 1, 1971, such measures as may benecessary to bring their authority and policies intoconformity with the intent, purposes, and proceduresset forth in this Act.

Sec. 104Nothing in Section 102 or 103 shall in any way affectthe specific statutory obligations of any Federal agency(1) to comply with criteria or standards ofenvironmental quality, (2) to coordinate or consult withany other Federal or State agency, or (3) to act, orrefrain from acting contingent upon therecommendations or certification of any other Federalor State agency.

Sec. 105The policies and goals set forth in this Act aresupplementary to those set forth in existingauthorizations of Federal agencies.

Facts

The City Council, 2nd defendant wanted to construct aroad through a National Park and it was envisaged thatin the process some endangered fauna would be killed.For this therefore, they needed to get a license to allowthem take or kill this endangered fauna and it wassupposed to be issued after presenting among others,an environmental impact statement. This was not donebut the director still went ahead to grant the license.Leatch appealed against the grant.

Held

The court observed that when there is a threat ofsignificant reduction or loss of biological diversity, lackof full scientific certainty should not be used as a reasonfor postponing measures to avoid or minimize such athreat it was noted that this principle is directed towardsthe prevention of serious or irreversible harm to theenvironment in situations of scientific uncertainty. Itspremise is that where uncertainty or ignorance existsconcerning the nature or scope of environmental harm

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(whether this follows from policies, decisions oractivities), decision-makers should be cautious.

Applications of the precautionary principle appears tobe most apt in situations of scarcity of scientificknowledge or species population, habitant and impacts.Indeed one permissible approach is to conclude thatthe state of knowledge is such that one should not granta license to take or kill the species until much more isknown.

STEIN J

Fauna Protection - Licence to take or kill endangeredfauna - Road construction - Objector appeal againstgrant of licence - Fauna impact statement - Adequacy- Factors to be taken into account - Benefits ofdevelopment to be balanced against likely loss ofendangered species - National Parks and Wildlife Act1974 (NSW), ss 5, 92, 92A-92D, 99,120.

Section 92 of the National Parks and Wildlife Act, 1974(NSW) makes the Director-General of the NationalParks and Wildlife Service the authority for theprotection and care of fauna. Under s 92A, a scientificcommittee was appointed to review and continue toreview Schedule 12 of the Act which provides a list ofendangered fauna. Subsections (5) and (6) specifymatters which the committee must have regard to indeciding to place species of fauna on the schedule as“threatened” (Pt 1) or “vulnerable and rare” (Pt 2).Section 92B provides that only the Director-Generalmay issue licences to take or kill endangered fauna. Inconsidering a licence application, the Director-Generalmust take into account the fauna impact statement, anysubmissions received, the factors listed in s 92A(5)and (6) and any reasons given by the scientific

committee under s 92A(3)(d). The Director-Generalmay require further information and may grant theapplication unconditionally or subject to conditionsor may refuse it. Section 92C provides a right of appealto the Land and Environment Court by an applicantfor a licence to which s 92A applies or by any personwho made a submission under subs (5) thereof. Section92D sets out the requirements for a fauna impactstatement. Section 99 provides substantial penaltiesfor taking or killing endangered fauna without authorityof a licence. Section 120 enables licences to be issuedto take or kill any protected fauna in the course ofcarrying out specified development or activities.

On 25th February 1993, Shoalhaven City Councilapplied to the Director-General of the National Parksand Wildlife Service for a licence to take or killendangered fauna.

The need for the licence arose from the granting ofdevelopment consent by the Council to itself for theconstruction of a link road through North Nowra tothe Princes Highway, including a bridge overBomaderry Creek. The licence application wassupported by a fauna impact statement pursuant to s92A of the National Parks and Wildlife Act. TheDirector-General granted the licence, subject toconditions and an objector who had made a submissionappealed, submitting that the fauna impact statementwas invalid or legally inadequate as failing to complywith s 92D of the Act. In particular, it was submittedthat there had been a failure to include “to the fullestextent reasonably practicable,” a description of thefauna affected by the actions and the habitat of thefauna.

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HELD

l) The same tests of adequacy in relation toenvironmental impact statements under theEnvironmental Planning and Assessment Act1979 (NSW) should apply to fauna impactstatements under the National Parks and WildlifeAct

Schaffer Corporation Ltd v Hawkesbury CityCouncil (1992) referred to.

2) Like an environmental impact statement a faunaimpact statement is not the decision but rather atool to be used in the decision making and maybe supplemented by further information.

3) In the circumstances of the present matter theomission to advertise certain further informationwhich had been provided to supplement the faunaimpact statement did not cause the fauna impactstatement to be legally inadequate, or otherwisefatally flaw the decision making process. .

4) In the present matter the fauna impact statementincluded a reasonably thorough discussion of thesignificant issues and likely faunal consequencesand was not legally inadequate.

5) The “precautionary principle,” under which, ifthere are threats of serious or irreversibleenvironmental damage, lack of full scientificcertainty should not be used as a reason forpostponing measures to prevent environmentaldamage, is not an extraneous consideration forthe purposes of Pt 7 (Fauna) of the National Parksand Wildlife Act 1974.

6) A licence to take or kill endangered fauna shouldnot in most circumstances be “general” in itscoverage of endangered species but shouldspecify the species which it permits to be taken.

7) The period of a licence to take or kill endangeredfauna should be confined, so far as reasonable,because of possible changes in the physicalenvironment and state of scientific knowledge.

8) In the present matter, the purely economic analysisof the respective alternative road routes hadresulted in a failure to include natural values inthe evaluating balance.

9) Upon examination of all of the evidence the Courtcould not be satisfied that a licence under S. 120of the National Parks and Wildlife Act 1974 totake or kill endangered fauna should be grantedto the Council in the present matter.

APPEAL

“This was an objector appeal under s 92c of theNational Parks and Wildlife Act 1974 against thegranting of a licence under s 120 of that Act to take orkill endangered fauna. The facts are set out in thejudgment.

I J Dodd (solicitor), for the applicant.

B J Preston, for the respondent.

J J Webster, for the second respondent (the Council)

Judgment reserved

23rd November 1993

STEIN J.

INTRODUCTION

Shoalhaven City Council (the Council) applied to theDirector-General of the National Parks and WildlifeService for a licence to take or kill endangered fauna.The Director-General granted a general licence subject

LEATCH

VERSUS

NATIONAL PARKS AND WILDLIFE SERVICE AND SHOALHAVEN CITYCOUNCIL

(Land and Environment Court New South Wales): (1993) 81 LGERA 270 (Australia)

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to conditions. Any person who made a submissionpursuant to s 92B(5) of the National Parks and WildlifeAct 1974 (NSW) as amended (the Act) may appeal tothe Court if dissatisfied with the decision. Ms MayLeatch objected by filing the subject Class 1application in court on 23rd July 1993.

The need for a licence arises from the granting ofdevelopment consent by the Council to its ownproposal to construct a link road through North Nowrato the Princes Highway. The proposed road includes a60 metre bridge over Bomaderry Creek. In support ofits application for a licence, the Council submitted afauna impact statement to the National Parks andWildlife Service pursuant to s 92B(2) of the Act. Thefauna impact statement was advertised in February1993 and a number of submissions, including one fromthe applicant, were received by the National Parks andWildlife Service. After consideration of the licenceapplication, the National Parks and Wildlife Servicesought further information from the Council. Asupplementary submission was provided by theCouncil on 19 May and on 24 June 1993, the Director-General formally notified the Council that a generallicence under s 120 of the Act had been granted for aperiod of ten years subject to a number of ameliorativeconditions. Notice of the issue of the licence waspublished in the Government Gazette of 2nd July 1993.

THE LEGISLATIVE FRAMEWORK

The National Parks and Wildlife Act was extensivelyamended in terms of its fauna protection provisionsby the enactment of the Endangered Fauna (InterimProtection) Act 1991 (NSW): The amending legislationwas in part a response to the decision of the Court inCorkill v Forestry Commission (NSW) (1991) 73LGRA 126, affirmed in the Court of Appeal in ForestryCommission (NSW) v Corkill (1991) 73 LGRA 247.

It may be useful to attempt a brief summary of therelevant provisions of the Act. Section 92 makes theDirector General the authority “for the protection andcare of fauna.”

A scientific committee was appointed pursuant to s92A to review and continue to review Schedule 12 ofthe Act, which provides a list of endangered fauna.Section 92A(5) and s 92A(6) respectively specifymatters which the committee must have regard to indeciding to place species of fauna on the schedule asthreatened (pt 1) or vulnerable and rare (Pt 2). Onlythe Director General may issue a licence to take or kill

endangered fauna (s 92B). Section 5 of the Act defines“take” as follows:

“‘take’, in relation to any fauna, includes hunt,shoot, poison, net, snare, spear, pursue,capture, disturb, lure or injure, and withoutlimiting the foregoing also includes significantmodification of the habitat of the fauna whichis likely to adversely affect its essentialbehavioural patterns.”

It may be seen that the definition includes habitatmodification discussed in Corkill.

In considering a licence application, the Director-General must, pursuant to s 92B(6), take into accountthe fauna impact statement, any submissions received,the factors listed in s 92A(5) and s 92A(6) and anyreasons given by the scientific committee under s92A(3)(d). Subsection (6) allows the Director-Generalto require “further information concerning theproposed action and the environment to be affectedfrom the applicant...” The Director-General may grantthe application unconditionally or subject to conditionsor refuse the application (s 92B(8). Section 92D setsout the requirements of a fauna impact statement.Subsection (1) provides:

b) be signed by the person who prepared it; and

c) include, to the fullest extent reasonablypracticable, the following:i) a full description of the fauna to be

affected by the actions and the habitat usedby the fauna;

ii) an assessment of the regional andstatewide distribution of the species andthe habitat to be affected by the actionsand any environmental pressures on them;

iii) a description of the actions and how theywill modify the environment and affect theessential behavioural patterns of the faunain the short and long term where long termencompasses the time required toregenerate essential habitat components;

iv) details of the measures to be taken toameliorate the impacts; and

v) details of the qualifications and experiencein biological science and faunamanagement of the person preparing thestatement and of any other person who hasconducted research or investigations reliedupon.

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Substantial penalties are provided by s 99 of the Actfor taking or killing endangered fauna - imprisonmentand/ or a fine. It is a defence if the act was done underor in accordance with a general licence issued under s120. The latter section permits licences to be issued totake or kill any protected fauna in the course of carryingout specified development or activities. A generallicence may, but need not, specify the species of fauna,which may be taken or killed under its authority.

On any appeal under s 92C, the Court must take intoaccount the factors set out in s 92B(6) viz, the faunaimpact statement, submissions received by the DirectorGeneral, the factors set out in s 92A(5) and S.92A(6)(which include “any other matter which the Committeeconsiders relevant”), any reasons of the committeeprovided under S.92A(3)(d) and any furtherinformation provided under S 92B(6). Section 92C(2)makes it clear that s 92B(6) does not limit s 39 of theLand and Environment Court Act 1979 (NSW).Relevantly this section provides:

“(2) In addition to any other functions anddiscretions that the Court has apart from thissubsection, the Court shall, for the purposesof hearing and disposing of an appeal, haveall the functions and discretions which theperson or body whose decision is the subjectof the appeal had in respect of the subjectmatter of the appeal.

(3) An appeal in respect of such a decisionshall be by way of rehearing, and freshevidence or evidence in addition to, or insubstitution of the evidence given on themaking of the decision may be given on theappeal;

(4) In making its decision in respect of anappeal, the Court shall have regard to this orany other relevant Act, any instrument madeunder any such Act, the circumstances of thecase and the public interest.

(5) The decision of the Court upon an appealshall, for the purposes of this or any other Actor instrument, be deemed, where appropriate[to be that of the Director General ?]

Pursuant to s 17 of the Land and EnvironmentCourt Act, appeals under s 92C of the Act are assignedto class I of the jurisdiction of the Court.

Besides what might be broadly described as the “merit”issues arising on the appeal, the applicant seeks to argue

that the fauna impact statement does not comply withthe Act, specifically with the requirements of s 92D(1)( c) and s 92D(2). I will return to this issue later inmy reasons.

BACKGROUND

For some years, the Council has perceived the needfor a new road link across Bomaderry Creek betweenthe expanding residential areas of North Nowra andthe Princes Highway. It is said that congestion at theintersection of Illaroo Road and the Princes Highway,just north of the bridge over the Shoalhaven River, isbecoming chronic and the intersection approachingfinite capacity. A new link will relieve this situationand defer highway upgrading for around five years. Iaccept Council’s position that a new road link isjustified. Various options were discussed in a CouncilSituation Paper issued in December 1990.

Following this paper, in or around August 1991,Council made a development application to itself, asconsent authority, to permit the construction of an East/West road and bridge over the Bornaderry creek linkingNorth Nowra to the Princes Highway. The route of thelink was from the intersection of Pitt Street and IllarooRoad (in the west)to Nerang Road (to the east) andjoining the Princes Highway approximately 2kilometers north of the Shoalhaven River. The bridgecrossing of the creek would be located in the vicinityof an existing weir and water pipeline, and the roadwould approximately follow an electricity transmissionline easement. The application was accompanied by areview of environmental factors in two volumesprepared for the Council by consultants, MitchellMcCotter & Associates.

The review of environmental factors discussed fourpotential alternative routes concluding that thepreferred route had clear overall benefits as it provideda necessary level of traffic service, a positive benefitto cost ratio and “acceptable environmental impacts."The document made an assessment of the alternativeson economic, environmental and social or communityfactors and ranked each option from A to D. For thepurposes of this case, it is probably sufficient toconcentrate on Council’s preferred alignment and thenorthern alternative following West Cambewarra Roadfrom its intersection with Illaroo Road to the PrincesHighway (or Moss Vale Road). The review ofenvironmental factors estimated the cost of this routeat $1.1 million and the preferred alternative at $1.8million. The cost/ benefit analysis, however, was foundto be positive for the preferred route and slightlynegative for the northern alternate route. The lengths

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of each road varied, the proposed route being 1.9kilometres and the northern alternative 1.6 kilometres.

Flora and fauna impact was assessed at a mostfavourable A rating for the West Cambewarra Roadlink compared to a B for flora and C for fauna for theproposed road. Among the various community factorsassessed was “traffic flows.” In this regard, thepreferred route was assessed as A and the northernalternative route graded as C. The preferred route wassaid to provide significant benefits in terms of vehicletravel time and cost savings. The northern option wasseen as non-cost effective because traffic would stillbe attracted to the Illaroo Road route to NowraTownship.

The review of environmental factors described anumber of diverse vegetation communities in the area,particularly towards the Bomaderry Creek gorge. Anumber of rare plant species were identified. Forexample, the Eucalyptus Iangleyi occurringimmediately to the north of the creek at the picnic area;Dampeira rodwayana, a small shrub occurring in theScribbly Gum woodland and Zierla bacuerlenii(Rutaceae) a rare and endangered plant occurring onlyin bushland around the Bomaderry Creek. As Dr. KevinMills says this means that it is found nowhere else inthe world. Already it has been noted that many Zierlaplants in the area of the proposed road have beenvandalised and destroyed. Some Zierla bacuerlenii aregrowing a small distance to the north of the proposedroad and are proposed to be fenced off. The AustralianHeritage Commission has placed a nearby area of theBomaderry Creek on the Register of the National Estatebecause of the occurrence of Zierla. In addition, theplant is listed as an endangered species under ScheduleI of the Endangered Species Protection Act 1992 (Cth).

The comment might be made that it is somewhatstrange that under State law rare and endangered plantsare not accorded similar protection to rare andendangered fauna, especially since flora is importantfor biological diversity and advances in medicalscience sometimes involve the application of rareplants.

The review of environmental factors found that diversefauna communities were expected to be present in thegorge area. Fauna were briefly surveyed. A number ofspecies listed in schedule 12 of the Act were known,or likely, to occur in the study area. However, thereview of environmental factors (at 4.12) stated thatthe impact of the road on fauna “is likely to benegligible.” To protect the ecological values of the areathe report proposed a number of mitigation measures.

An ecological assessment of Dr. Kevin Mills wasappended to the review of environmental factors. Itexamined the vegetation communities, the presenceof threatened plant species and fauna of conservationimportance. His assessment stated that “the BomaderryCreek gorge is probably one of the most valuable areasof fauna habitat within the Noowra town limits” (at13). The report also noted that the Yellow-belliedGlider could be present in the area. In assessing theoptions, the document concluded that the northernalternative avoided the creek gorge, the dissection ofthe Bomaderry Creek bushland and also damage torare plant species. By contrast, the Council’s preferredroute had potential impacts on rare plants and on therecreational values of the gorge (at 11).

In June 1992 the Council asked the Director-Generalfor a specification for a fauna impact statement andthis was provided on 14th July 1992. The three pagedocument required, inter alia, “a full fauna survey”along the proposed route and all feasible alternatives.It mentioned the targeting of endangered speciesknown or likely to occur in the area including theYellow-bellied Glider, Diamond Python and the TigerQuoll.

It appears that in October 1992, the Council resolvedto approve the development application “subject to theimposition of appropriate conditions of consent,provided recommendations of a fauna impact statementwere satisfactory." By letter dated 3rd February 1993,Council applied to the National Parks and WildlifeService for a licence under S. 120 of the Act to take orkill endangered fauna, enclosing copies of a faunaimpact statement prepared in October] 992 by itsconsultants, Mitchell McCotter & Associates. On 25th

February 1993, Council resolved to grant conditionaldevelopment consent to its road proposal. Condition2 thereof provides:

“This consent is conditional upon theobtaining of a Licence pursuant to s 120 ofthe National Parks and Wildlife Act [asamended by the Endangered Fauna (InterimProtection) Act, and the New South Wales NationalParks and Wildlife Service, prior to any workscommencing.”

The fauna impact statement and licence applicationwere advertised by the National Parks and WildlifeService and a number of public submissions werereceived, including one from the present appellant. Thefauna impact statement concluded that the site was thehabitat of endangered species. However, as it wasisolated from other areas of suitable habitat, the long

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term viability of the species was questionable. Impactson endangered fauna were not considered sufficientto prevent the construction of the proposed road.Mitigation measures were recommended.

The public submissions drew attention to a number ofmatters including the rare plant species. TheShoalhaven branch of the Australian ConservationFoundation was critical of the fauna impact statementand drew attention to the likely occurrence of the giantBurrowing Frog which had been added to Schedule12 by the scientific committee in December 1992, afterthe fauna impact statement was prepared. The TotalEnvironmental Centre, in a detailed submission, wasalso critical of aspects of the fauna impact statementand drew attention to the precautionary principle.

The fauna impact statement was assessed by theNational Parks and Wildlife Service’s NaturalResources Coordinator (Southern Region), Ms LizDovey. She noted that the Diamond Python, referredto in the specification, had been removed fromSchedule 12 in December, 1992 but the Giant Burrowing Frog had been added and would need to beassessed. The officer critically examined the faunaimpact statement and found it deficient in a number ofaspects. As a result, the National Parks and WildlifeService requested further information from the Council(5 May 1993). In response, a further report of MitchellMcCotter was provided to the National Parks andWildlife Service by the Council.

The report referred to the Giant Burrowing Frog butstated that since the gorge area had been substantiallydegraded it was “not considered prime habitat for thespecies.” The document continued: “... it is consideredtherefore that the proposed road will not impact uponthis species.” The further information did not notethat Council’s consultants, Dr. York and Mr. Daly, hadheard the call of the Giant Burrowing Frog in May1992 when spotlighting for gliders. Although notexpressly required, no mention was made of theoccurrence in the fauna impact statement. The positionwhere the frog was heard was north of the proposedroad alignment (to the west of the gorge) and on theedge of the Grey Gum woodland adjacent to a dry scrubcommunity dominated by White Kunzea Ambigua andTea-tree. The report concluded that on balance theproposed road best met environmental and economicobjectives. The integrity of the gorge could beprotected by a range of ameliorative measures,including an extensive buffer conservation zone.

The further information provided was not advertised,although news of it appears to have leaked and further

public submissions were received by the NationalParks and Wildlife Service. Ms Dovey again assessedthe material, concluding much of it to be inadequate.However, the Director determined to grant a generallicence subject to conditions.

While the process of the Court on appeal is by way ofre-hearing, it is useful to examine the decision-makingprocess of the National Parks and Wildlife Service.The decision-making documents (exhibit A, documents37 and 38) considered that direct impacts of thedevelopment would likely result in the killing orinjuring of fauna. Indirect impacts of the developmentincluded habitat fragmentation and disturbance ofindividual animals from noise and light. Document 37contains the following conclusions:

“Overall, it is considered that the additionalinformation provided by Shoalhaven CityCouncil, when combined with the informationin the fauna impact statement, is adequate topermit a decision to be made on this licenceapplication. Based on this information, it isconsidered that the taking or killing ofendangered fauna is likely to occur if the roadproposal proceeds. This is especially the casein relation to populations of Yellow-belliedGlider and Tiger Quoll, even though preciseestimates cannot be given as to currentpopulation distribution and abundances.

It is also considered that the definite need forthe road has been demonstrated by Shoalhaven City Council and it is noted thatdevelopment approval under theEnvironmental Planning and Assessment Act1979 has been granted for the constructionof the road.

It is also considered that there is uncertaintyas to the long-term viability of the localendangered fauna populations which arelikely to be affected by this road. Long-termdevelopment plans for the locality indicateincreasing pressures on existing populationswhich may become locally extinctirrespective of whether or not the road isconstructed. This is especially the case inrelation to populations of Yellow belliedGlider and Tiger Quoll.

Generally, the ameliorative prescriptionsproposed by Council as described in the faunaimpact statement and Council’s additionalinformation provide an adequate amelioration

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of any adverse effects which the road mayhave on endangered fauna.”

THE HEARING

The Director-General, represented by Mr. Preston,tendered the whole of the relevant National Parks andWildlife Service documentation including the reviewof environmental factors, the fauna impact statement,the public submissions and further informationprovided by the Council. No oral evidence was called.The applicant, Mrs. Leatch, represented by Mr. Dodd,tendered reports of Mr. Terence Barratt, anenvironmental scientist with the Water Board and ex-National Parks and Wildlife Service officer (and amember of the Shoalhaven branch of AustralianConservation Foundation); Mr. Garry Webb, an experton the giant Burrowing Frog and Dr. Roger Coles, anexpert on bats. The Council, represented by Mr.Webster, tendered reports from two of its officers,Messrs Murray and Aber; Dr. Kevin Mills, ecologicaland environmental consultant; Mitchell McCotter,planning and environmental consultants; Dr. AlanYork, a wildlife ecologist with State Forests and Mr.Robert Nairn, a transport planner and economist.

The parties also tendered a number of plans,photographs, background reports and documentation.It may be reasonable to summarise the thrust of theevidence as principally concerning the impact of theroad proposal on the Yellow-bellied Gliders living inthe vicinity and their habitat and the likely impact ofthe road on the Giant Burrowing frog. Besides thesespecies it may be concluded that the evidence doesnot establish that any other species of endangered faunais likely to be taken or killed in the course of carryingout the development. No licence is therefore requiredfor those animals. The applicant placed emphasis onthe perceived lack of exploration of the alternativenorthern route via West Cambewarra Road as a factorto balance against the application for a licence to takeor kill endangered fauna.

THE VALIDITY OF THE FAUNA IMPACTSTATEMENT

The applicant submits that the fauna impact statementis invalid or legally inadequate as failing to complywith s 92D(l)( c) of the Act. In particular, it is submittedthat there was a failure to include “to the fullest extentreasonably practicable,” a description of the faunaaffected by the actions and the habitat of the fauna (s92D(I)(c)(i). Particular reference is made to the non-inclusion of the Giant Burrowing Frog. Should thefauna impact statement be found to be legally

inadequate, the applicant submits that there is nojurisdiction in the Court to embark on the appeal.

Both the Director-General and the Council submit thatthe fauna impact statement can be amplified by furtherinformation sought and provided under s 92B(6) ofthe Act. They also submit that the standard requiredfor a fauna impact statement is not intended to be asrigorous as that required for an environmental impactstatement under the Environmental Planning andAssessment Act 1979 (NSW).

I am unable to discern any ambiguity in the ordinarymeaning of the statutory provisions. Accordingly theextrinsic materials relied on and contained in theexplanatory note and second reading Speech are of noassistance. Even if taken into account, they don’t takethe issue of construction any further. I fail to perceivewhy any different or lesser standard should be appliedto a fauna impact statement as opposed to anenvironmental impact statement. While the scope andpurpose of the two Acts (the National Parks andWildlife Act and Environmental Planning andAssessment Act) is different, the purpose of bothstatements is similar - to assist the decision-maker inits task and to inform the public and enable itsparticipation. A fauna impact statement is a narrowerdocument than an environmental impact statement,confining itself to impacts on endangered fauna. Thisis made plain by s 92D(4), which provides that if anenvironmental impact statement, prepared under Pt 4or Pt 5 of the Environmental Planning and AssessmentAct, addresses the matters set forth in s 92D(l), noseparate fauna impact statement is required.

In my opinion the same tests of adequacy developedin relation to environmental impact statements shouldapply to fauna impact statements. Nothing in thesubject matter, scope and purpose of the National Parksand Wildlife Act, particularly the amendments insertedby the Endangered Fauna (Interim Protection) Act,lead to a contrary conclusion. Indeed, the reverse isthe case. This means that the tests laid down in theauthorities, in particular Prineas v. ForestryCommission of New South Wales (1983) 49 LGRA402, are relevant.

Mr. Preston (supported by Mr. Webster) submits thatthe fauna impact statement, together with thesupplementary information, is adequate in law tocomply with the requirements of the Act and satisfythe twin goals of the exercise. Assuming theres a deficiencyin the fauna impact statement, Mr. Preston says that itwould be ridiculous if this could not be overcome bythe provision of additional information referred to in

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the closing words of s 92B(6). While acknowledgingthat the additional information was not advertised, henotes that there is no statutory requirement to advertisesuch material.

The issue of the jurisdiction of the Court in a class Iappeal to consider the validity of an environmentalimpact statement was exhaustively examined by theChief Judge of the Court, Pearlman J in SchafferCorporation Ltd v Hawkesbury City Council (1992)77 LGRA 21 at 28.30. The decision of the Court ofAppeal did not affect her Honour’s judgment on theissue. I agree with Pearlman J’s analysis of the legalsituation and her conclusion.

“But what is in issue in this case is not aquestion of relief for breach, but a question ofwhether or not, exercising the functions of aconsent authority, the Court would grantconsent to the development application. Inpursuing that issue, one of the questions fordetermination is whether or not .there is a validenvironmental impact statement on which agrant of consent by the Court is (sic) soexercising its functions can be founded.”.

Mr. Dodd submits that the additional informationcannot be relied on to bolster the environmental impactstatement. He says that the ability of the Director-General to seek further information assumes anadequate fauna impact statement. The provision (in a92B(6) is merely an enabling one to allow the Directorto seek additional information which may notnecessarily be included in a fauna impact statementbut which would assist him in making a decision onthe application.

I reject the submission. The provision allowing theDirector-General to seek further information from anapplicant is clearly designed to assist the decision-maker and supplement the fauna impact statement inany area specified by the Director in his request. Likean environmental impact statement, a fauna impactstatement is not the decision, rather it is a tool to aidthe decision-maker in his/her task. The Schedule ofendangered species is not static; see s 92A(3) and s94. Indeed, changes to the listed endangered fauna maybe illustrated by this case. When the fauna impactstatement was compiled and submitted, the DiamondPython was listed and thus was included in thestatement. The Giant Burrowing Frog, however, wasnot listed and not discussed in the statement. InDecember 1992, after the fauna impact statement wascompleted, but before the further information wasrequested by the Director General, the Diamond Python

was removed from the list and the Giant BurrowingFrog added. The additional information forwarded bythe Council sought to describe and assess that creature.

In a dynamic situation, such as this, it cannotrealistically be suggested that when a new species isadded to the list, a new fauna impact statement isrequired. Such a requirement would make nonsenseof the system, render it almost unworkable, overlyexpensive and subject to unreasonable delays. In myopinion, a fauna impact statement can be supplementedby further information required by the Director-Generaland that information can be taken into account by theCourt in assessing the question of the legal adequacyof the process. One aspect, however, is of concern.The failure to advertise the further information mayhave deprived members of the public of the opportunityto participate. Although not required by the legislation,it would have been preferable for the National Parksand Wildlife Service to have re-advertised especiallysince a new species was included - the Giant BurrowingFrog. But it is clear that most, if not all, objectors whomade written submissions were aware that informationhad been provided by the Council to the National Parksand Wildlife Service, although not its full content.Further comprehensive public submissions were madeto the National Parks and Wildlife Service. This is nota class 4 judicial review proceeding under theEnvironmental Planning and Assessment Act wherethe discretion inherent in s 124 is applicable, nor is ita proceeding brought under s 176A of the NationalParks and Wildlife Act alleging a breach of the Act. Inmy opinion, the omission to advertise the furtherinformation does not cause the fauna impact statementto be legally inadequate or otherwise fatally flaw thedecision-making process.

Mr. Dodd further submits that the fauna impactstatement is inadequate in failing to address sufficientspecies and in sufficient detail. He maintains that thefauna surveys were inadequate and there has been afailure to provide a full description of the affected faunaand their habitat. Moreover, he contends that there isan inadequate description of the actions involved inthe proposal. He draws attention to the fauna impactstatement not including the development consentconditions, taking account of their import and includingan examination of the proposed Illaroo Road deviation.In my opinion the criticisms catalogued by Mr. Doodare insufficient to lead the Court to conclude that thefauna impact statement is legally inadequate. It maynot be perfect, but it does not need to be. The faunaimpact statement includes a reasonably thoroughdiscussion of the significant issues and likely faunalconsequences. It appears to me that the fauna impact

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statement, read with the further information, satisfiesthe tests: collected in Schaffer Corporation vHawkesbury City Council Ltd (at 30-32). In myopinion the fauna impact statement is legally adequateand not in breach of s 92D(1) or s 92D(2) of the Act.Accordingly, the Court may proceed to the merit reviewof the application.

THE MERITS

Since as far as I am aware, this is the first appeal unders 92C of the National Parks and Wildlife Act, it maybe useful to examine the Court’s role in suchproceedings. In determining an appeal, s 92C(2) directsthe Court to s 92B(6). It is mandatory for the Court totake these matters into account. They comprise:

• The fauna impact statement;

• Any public submissions received by the NationalParks and Wildlife Service;

• The factors set out in s 92A(5) and s 92A(6). Thesediffer between threatened and vulnerable and rarespecies but in both cases include (e), “any othermatter which the Committee [I interpolate theDirector-General under s 92B(6) and the Court unders 92C(2)] considers relevant;”

• Any reasons of the scientific committee under s92A(3)(d); and

• Any further information provided under s 92B(6).

In addition, s 92C(2) makes it clear that the factors setforth in s 92B(6) do not limit s 39 of the Land andEnvironment Court Act. As quoted earlier, 39(2) statesthat in addition to any other functions and discretionsthat the Court has, it shall have all the functions anddiscretions of the person whose decision is the subjectof the appeal, in this case the Director-General of theNational Parks and Wildlife Service. Subsection (3)requires an appeal to be by way of re-hearing and freshevidence, in addition to or in substitution for theevidence given on the making of the decision, may begiven. Of importance to this application is subs (4). Itprovides that in making its decision on appeal, the Courtshall have regard to the Land and Environment CourtAct and any other relevant Act or instrument, “thecircumstances of the case and the public interest.”

As previously mentioned, at least two submissionsraised the question of the application of the“precautionary principle.” The question arises whether,

if the principle is relevant, it may be raised in theappeal. Mr. Dood asks that it be taken into account,particularly in relation to the Giant Burrowing Frog.On behalf of the Director General, Mr. Preston submitsthat the principle could be applicable. For example,he says that the Court would not issue a licence totake or kill a particular endangered species if it wasuncertain where that species would be present or therewas scientific uncertainty as to the effect of thedevelopment on the species.

While there has been express references to what iscalled the “precautionary principle” since the 1970’s,international endorsement has occurred only in recentyears. Indeed, the principle has been referred to inalmost every recent international environmentalagreement, including the 1992 Rio Declaration onEnvironment and Development [Principle 15], the1992 UN Framework Convention on Climate Change[art 3(3)], the June 1990 London Amendments to theMontreal Protocol on Substances that Deplete theOzone Layer [preamble, par 6] and the 1992Convention on Biological Diversity. This latterconvention, which Australia has ratified, is of relevanceto the present case. It formulates the precautionaryprinciple in the following terms:

“... where there is a threat of significantreduction or loss of biological diversity, lackof full scientific certainty should not be usedas a reason for postponing measures to avoidor minimise such a threat.”

Within Australia, the Commonwealth has enacted theEndangered Species Protection Act 1992 which makesprovision under s 175 to give effect to internationalagreements specified in Schedule 4 of the Act. At thispoint in time, Schedule 4 does not include the 1992Convention on Biological Diversity. However, theprecautionary principle has been incorporated in theCommonwealth strategies on Endangered Species andBiological Diversity and, more generally, in the 1992Intergovernmental Agreement on the Environment, aswell as state legislation such as the Protection of theEnvironment Administration Act 1991 (NSW). In thisstatute, the statement of the principle has taken thefollowing form:

“... if there are threats of serious or irreversibleenvironmental damage, lack of full scientificcertainty should not be used as a reason forpostponing measures to prevent environmentaldegradation” (s 6(2)(a).

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The 1992 Intergovernmental Agreement onEnvironment has also utilised this formulation, butexpanded it by adding:

“In the application of the precautionaryprinciple, public and private decisions shouldbe guided by:i) careful evaluation to avoid, wherever

practicable, serious or irreversible damageto the environment; and

ii)an assessment of the risk weighedconsequences of various options.”

On behalf of the Director-General, Mr. Preston madesubmissions on the incorporation of international lawinto domestic law. It seems to me unnecessary to enterinto this debate. In my opinion the precautionaryprinciple is a statement of commonsense and hasalready been applied by decision-makers in appropriatecircumstances prior to the principle being spelt out. Itis directed towards the prevention of serious orirreversible harm to the environment in situations ofscientific uncertainty. Its premise is that whereuncertainty or ignorance exists concerning the natureor scope of environmental harm (whether this followsfrom policies, decisions or activities), decision-makersshould be cautious.

I have earlier referred to the factors the Court musttake into account on an appeal under s 92C of the Act.These include the submissions made (s 92B)(6)(b),some of which argued that the precautionary principlewas appropriate to the case; any other matter whichthe Court considers relevant (s 92A(6)(e)) and thecircumstances of the case and the public interest (s39(4) of the Land and Environment Court Act). Theissue then is whether it is relevant to have regard tothe precautionary principle or what I refer to asconsideration of whether a cautious approach shouldbe adopted in the face of scientific uncertainty and thepotential for serious or irreversible harm to theenvironment.

To test the relevance of these considerations, or theprecautionary principle to the endangered faunaprovisions of the National Parks and Wildlife Act, oneneeds to examine the subject matter, scope and purposeof the enactment. A consideration will be irrelevant ifone is bound by the enactment to ignore it. However,where a matter is not expressly referred to,consideration of it may be relevant if an examinationof the subject matter, scope and purpose shows it notto be an extraneous matter: Minister for AboriginalAffairs v Peko- Wallsend Ltd (1986) 162 CLR

Under Pt 7 of the Act, the Director-General is appointedthe authority for “the protection and care of fauna” (s92). The remainder of Pt 7 establishes a regimerequiring consideration and identification ofendangered fauna (threatened or vulnerable and rare)(s 92A), licensing where endangered fauna may betaken or killed and the creation of offences involvingstringent penalties (including imprisonment) for thetaking or killing of protected and, endangered faunain contravention of the Act (as 98, 99, 103). It is clearthat the purpose of these provisions is the protectionand care of endangered fauna. To this end, the scientificcommittee (in placing fauna on the endangered list),the Director-General (in determination of a licence)and the Court (on appeal) are to have regard, inter alia,to the population, distribution, habitat destruction andultimate security of a species (see s 92A(5) and s(2A(6)). Similar data or details are to be assessed underthe fauna impact statement (see in particular s92D(c)(ii) and s 92D(c)(iii).

When Pt 7 of the Act is examined it is readily apparentthat the precautionary principle, or what I have statedthis may entail, cannot be said to be an extraneousmatter. While there is no express provision requiringconsideration of the “precautionary principle,”consideration of the state of knowledge or uncertaintyregarding a species, the potential for serious orirreversible harm to an endangered fauna and theadoption of a cautious approach in protection ofendangered fauna is clearly consistent with the subjectmatter, scope and purpose of the Act.

Upon an examination of the available material relevantto the Giant Burrowing Frog (Heleioporus australiacus)and the knowledge of the frog in this particular habitat,one is driven to the conclusion that there is a dearth ofknowledge. We know with reasonable certainty thatthe call of a male frog was heard by Dr. York and Mr.Daly in 1992. We know that it is likely that there is apopulation of the frogs in the area. Webb, an expert onthe frog, says that the amphibian is known to movegreat distances from breeding areas when foraging forfood at night. While its prime habitat appears to be agorge or creek environment, the Giant Burrowing Frogmay forage wider afield into drier areas. It is notsurprising therefore that its call was heard in an areasome distance from the gorge. Dr. York’s statementthat the degradation of the gorge habitat leads to theconclusion that it is not prime habitat for the speciesis open to question and is not self-evident to me. Dr.York does, however, make the point in his report(exhibit MI) that the nature and extent of the populationof the Giant Burrowing Frog in the study area are

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unknown. Notwithstanding, he says that it is possibleto make a reasonable assessment of the possibleimpacts of the road because of the known habitatrequirements, Dr. York sees a very small loss offoraging habitat and no loss or interference with accessto food or breeding patterns.

Garry Webb disagrees with a number of conclusionsof Dr. York. He accepts that the species is notoriouslydifficult to find but is critical of the limited reptile andamphibian survey, which is certainly inadequate todetermine the regional significance of its presence atBomaderry Creek. Since it is listed as a rare andvulnerable species, Mr. Webb says that its conservationshould be given a high priority. I accept his opinion.The frog is known in only a small number of locationsin the Shoalhaven region. Apart from the present case,only two sightings have been made - at Jervis Bay and15 kilometres south-east of Bowral in 1963. Itsdistribution is obviously patchy and its recent listingby the scientific committee understandable.

In the opinion of Mr. Webb, the road would present aninsurmountable barrier to the dispersion of frogs atfavourable times and divide suitable habitat into smallisolates. He doubts the relevance of any of the proposedmitigating factors to frogs and knows of no study whichsupports the efficacy of underpasses for frogs. (In thisregard Mr. Webster handed up a beautifully presentedbooklet entitled Amphibienschutz fromBadenWurttemberg. Its photographs include frogs andhighway underpasses. Unfortunately the text is inGerman, and notwithstanding my ancestry, I am unableto comprehend its import.)

Mr. Webb also opines other potential impacts on theGiant Burrowing Frog. However, he concludes hisreport by emphasising the inadequacy of the date toquantify the extent and size of the population in thearea “nor to assess the potential impact of the proposedroad.” In his view there has been an inadequate survey,an inadequate assessment of potential habitat and aninadequate assessment of the impact of thedevelopment on the survival of the population of thegiant Burrowing Frog.

Again, I accept and prefer his opinion.

Given that the Giant Burrowing Frog has only recentlybeen added to the schedule of endangered species bythe scientific committee as vulnerable and rare, andnoting the factors set forth in s 92A(6) to guide thecommittee’s deliberations, caution should be thekeystone to the Court’s approach. Application of the

precautionary principle appears to me to be most aptin a situation of a scarcity of scientific knowledge ofspecies population, habitat and impacts. Indeed, onepermissible approach is to conclude that the state ofknowledge is such that one should not grant a licenceto “take or kill” the species until much more is known.It should be kept steadily in mind that the definition of“take” in s 5 of the Act includes disturb, injure and asignificant modification of habitat which is likely toadversely affect the essential behavioural patterns ofa species. In this situation I am left in doubt as to thepopulation, habitat and behavioural patterns of theGiant Burrowing Frog and am unable to conclude withany degree of certainty that a licence to “take or kill”the species should be granted. Accordingly, the licenceunder s 120, in so far as it seeks a permit to take or killthe Giant Burrowing Frog in the course of carryingout the development, is refused.

The other principal species involved in the licenceapplication is the Yellow-bellied Glider (Petaurusaustralis). There is no doubt about its presence,although the Council’s consultants believe that onlytwo small groups inhabit the area. While the glidersare expected to use all the eucalypti species present,the woodland, are another food resource. MitchellMcCotter accept that the road may be a barrier tomovement of gliders attempting to utilise foodresources. A proposal for the erection of gliding polesto help facilitate movement of the gliders has beenmade. This is accepted to be a somewhat novelameliorative strategy which is yet to be the subject ofany published research. The efficacy of such a measureis therefore unknown.

The Yellow-bellied Glider has been listed as a faunaof special concern since the National Parks andWildlife Act was passed in 1974. In 1991 it was placedon Pt 2 of Schedule 12 as vulnerable and rare. Thisstatus was confirmed by the scientific committee in1992. There is little doubt that the Grey Gum forestedareas of the gorge are likely to represent core areas offavoured habitat for the gliders. It is also likely thatthe population of Yellowbellied Gliders has beenisolated in the study area and cut off from otherpopulations of the species for some years. On the onehand, the road will likely split and accordingly furtherreduce their habitat. On the other hand, the Council’scase suggests that their long-term survival is threatenedin any event by increasing residential development andthe possibility of the construction of the Nowra by-pass in fifteen to twenty years time. Theseprognostications are difficult for the Court to placegreat store in because they seem to be assuming that

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the endangered fauna may die out anyway at somefuture point in time, so why worry about conservingthem now.

In the final addresses made to the Court all parties -the applicant, the Director and the Council appearedto accept that the Yellow-bellied Glider was likely tobe adversely affected by the proposed road, that is,within the definition of “take” in s 5. This is no doubtwhy the Council applied for and the Director granteda licence under s 120 of the Act to take or kill thespecies. I agree that the evidence leads to the inevitableconclusion that the construction of the road and itsdevelopment is likely to involve the taking or killingof the Yellow-bellied Glider.

The question for the Court is therefore, should thelicence be granted, and if so upon what conditions? Inthis regard I would suggest that a licence should not inmost circumstances be “general” in its coverage ofendangered species but should specify the specieswhich it permits to be taken. I think this view is sharedby the National Parks and Wildlife Service, accordingto the submission of Mr. Preston. It makes good sensenot to grant a licence in relation to all endangered faunawhen some species may be later located which werenot the subject of a fauna impact statement or addedto the schedule by the scientific committee at a dateafter the issue of a general licence. Further, I note thatthe licence in question was issued for a period of tenyears. The development consent in this case does notlapse if it is physically commenced within five yearsof its grant. Accordingly, a period of five years orthereabouts would probably be an appropriate periodfor a licence. The length of a licence should beconfined, so far as reasonable, because of possiblechanges in the physical environment and state ofscientific knowledge.

The decision-making process involved in the issue ofa licence under s 120 obviously involves a balancingof considerations. This appears to be accepted by allparties and was applied by the National Parks andWildlife Service in its assessment of the application.Such a balancing of considerations is also part of theCouncil’s case. Can the benefits of the proposed roadbe balanced against the likely loss of endangeredspecies? The Council says that it can, pointing to theneed for the link road because of the growth of NorthNowra, the advantages to the public as well aseconomic arguments. Not surprisingly the applicanttakes a different view of the balance. The Director-General, although having determined to grant a licence,remains neutral, drawing attention to his role in theprotection and care of fauna.

As I have already stated, I am satisfied that there is aneed for a link road between North Nowra and thePrinces Highway to reduce the pressure on the IIIarooRoad/ Highway intersection. I accept Mr. Webster’spoint that the public interest includes having the newlink as well as the preservation of endangered fauna.Having concluded that the proposal is likely to take orkill endangered fauna, the Court needs to weigh allcompeting factors in order to determine whether alicence should be granted or refused. In this case oneof the critical factors to be balanced is the alternatives,especially where one may involve environmental harmbut not another. It is in this is area where, to mythinking, the Council’s case is deficient.

It seems apparent from the evidence that the northernroute via West Cambewarra Road is shorter andcheaper than the preferred route. This was confirmedby the cross-examination of Mr. Nairn. This alternativeis un arguably better for the environment, forendangered fauna, rare plants and the recreationalvalues of the Bomaderry Creek gorge. This is becausethe northern route is situated on the extremity of thearea. But, in traditional cost/benefit terms, utilised bythe Council, the option is said not to be economicallyfeasible. I have a certain difficulty in accepting thisproposition at face value. Quite apart from the narrowpurely economic balancing, what appears to beinvolved in the reasoning is a conclusion thatpredictable human behaviour will lead to not enoughpeople in North Nowra using the northern route. It isclaimed that they will prefer to remain on IIIaroo Roadwhich is shorter in distance, notwithstanding that theymay experience delays at the intersection with thehighway.

It should not necessarily be assumed that the traveltime will be more for users of the northern route.Indeed, for the expanding residential areas to the north-west the route would be more convenient. Mr. Nairnis concerned that residents in the Pitt Street precinctand beyond will not be prepared to travel north-east(away form Nowra) before turning south and willtherefore prefer to stay on IlIaroo Road. One may askwhether people are so committed to the motor vehiclethat they are not prepared to spend what might be anextra minute or two (at the most) to preserve an areaof natural values and fauna habitat, a resource used bythe very same community? A public educationcampaign by the Council (and the National Parks andWildlife Service) with appropriate signage, could wellhelp explain a new link route to the north-east inpreference to one traversing the Bomaderry Creekgorge.

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With respect to the northern route two comments areworth making on Mr. Nairn’s reports. First, he statesthat environmental factors were not included in thecost/ benefit analysis. In this circumstance, the valueto the Court of his cost/benefit analysis is limited. Mr.Nairn says that the inclusion of environmental valuesis not required by the State Treasury and not usual inAustralia.

I find the latter comment hard to accept. There are anumber of environmental economic models whichfactor environmental values into cost/benefit analysis.Surely an approach which attempts to integrateeconomic and environmental factors is preferable. Inmy opinion the purely economic analysis of therespective alternatives neglected to include naturalvalues. As a result the northern route viaWest Cambewarra Road was screened out too early inthe process to be properly considered as a realalternative to the preferred route.

This is made more apparent from Mr. Nairn’s evidencein reply, which includes the option of a Pitt Streetextension north-east through Crown land to connectwith West Cambewarra Road. This proposed extensionof Pitt Street is unlikely to pass through anyenvironmentally sensitive land and is well clear of theBomaderry gorge. If constructed, it will take peoplefrom the Pitt Street precinct and beyond well onto thenorthern option for the link road and, for large numbersof residents, would provide a real alternative to IIIarooRoad. It seems to me that insufficient attention hasbeen given to the northern route, especially coupledwith the Pitt Street extension canvassed by Mr. Nairnin his report in reply (exhibit K2 - figure 4 alternativeI )). The route also needs to be considered in the contextof the proposed sports complex in West CambewarraRoad near the intersection with IIIaroo Road. Inaddition, the northern option leaves the BomaderryCreek gorge area intact rather than split into segments.

CONCLUSION

It is the context of a thorough examination ofalternatives, especially ones which have minimalenvironmental impact, that one must balance the issueof a licence to take or kill endangered fauna. The needfor a link road is accepted but I question, when all

pertinent factors are weighed in the balance, whetherthe need is for this particular road. The issue of thebest route, taking account of all relevant circumstances,including environmental factors, needs to be carefullyassessed. It appears to me that alternatives need to befurther explored. I am not satisfied that a licence totake or kill the Yellow-bellied Glider, or any of theother species discussed in the fauna impact statement,is justified. The applicant for such a licence needs tosatisfy the Court, on the civil standard on the balanceof probabilities, that it is appropriate in all the relevantcircumstances to grant the licence. I am not convincedof the strength and validity of the economic argumentspresented to the Court by the Council, nor do I takesuch a predictable view of human behaviour as Mr.Nairn.

Following an examination of the evidence, I am notsatisfied that a licence under s 120 of the NationalParks and Wildlife Act to take or kill endangered faunashould be granted to the Council. However, it shouldbe emphasised that refusal of this licence applicationshould not necessarily be assumed to be an end of theproposal. Further information on endangered fauna andadvances in scientific knowledge may mean that alicence could be granted in the future. Also, changesin the proposal and ameliorative measures may leadto a different assessment. This case has beendetermined, as it must, on the evidence produced tothe Court at the hearing and the Court cannot speculateas to the future.

Accordingly the appeal is upheld and the licencerefused. The exhibits may be returned. Costs arereserved.

Appeal allowed and licence refused

Solicitors for the applicant: Bartier Perry & Purcell.

Solicitors for the respondent: J A Gibbins (NationalParks and Wildlife Service).

Solicitors for the second respondent (the Council):Morton & Harris (Nowra).

TFMN

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BUGHAW CIELO, CRISANTO, ANNA, DANIEL AND FRANCISCO, allsurnamed BIBAL, minors, represented by their parents FRANSCICO, JR.and MILAGROS BIBAL, and THE PHILLIPINE ECOLOGICAL NETWORK,

INC.

VERSUS.

THE HONORABLE FULGENCIO, FACTORAN, JR., in his capacity as theSecretary of the Department of Environment and Natural Resources,

and THE HONORABLE ERIBRTO U. ROSARIO, Presiding Judge of theRTC, Makati, Branch 66, G.R. No. 101083, 1993

DECISION

DAVID, JR., J.In a broader sense, this petition bears upon the right ofFilipinos to a balanced and healthful ecology that thepetitioners dramatically associate with the twinconcepts of “inter-generational responsibility” and“inter-generational justice.” Specifically, it touches onthe issue of whether the said petitioners have a causeof action to “prevent the misappropriation orimpairment” of Philippine rainforests and “arrest theunabated haemorrage of the country’s vital life supportsystems and continued rape of Mother Earth.”

The controversy has its genesis in Civil Case No. 90-777, which was filed before Branch 66 (Makati, MetrolManila) of the Regional Trial Court (RTC), NationalCapacity Judicial Region. The principal plaintiffstherein, now the principal petitioners are all minorsduly represented and joined by their respective parents.Impleaded as an additional plaintiff is the PhilippineEcological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for thepurpose of, inter alia, engaging in concerted actiongeared for the protection of our environment andnatural resources. The original defendant was theHonorable Fulgencio S. Factoran,Jr., then Secretaryof the Department of Environment and NaturalResources (DENR). His substitution in this petitionby the new Secretary, the Honorable Angel C. Alcala,was subsequently ordered upon proper motion by thepetitioners. The complaint was instituted as ataxpayers’ class suite and alleges that the plaintiffs “areall citizens of the Republic of the Philippines,taxpayers, and entitled to the full benefit, use andenjoyment of the natural resources treasure, thecountry’s virgin tropical rainforests.” The same wasfiled for themselves and others who are equally

concerned about the preservation of said resource butare “so numerous that it is impracticable to bring themall before the Court.” The minors further asseveratethat they “represent their generation as well asgenerations yet unborn.” Consequently, it is prayedfor judgment to be rendered:

“... ordering defendant, his agents,representatives and other persons acting in hisbehalf to cancel all existing timber licenseagreements in the country; cease and desist fromreceiving, accepting, processing, renewing orapproving new timber license agreements; and

granting the plaintiffs ...such other reliefs as arejust and equitable under the premises.”

The complaint starts off with the general avermentsthat the Philippine archipelago of 7,100 islands has aland area of thirty million (30,000,000) hectares andis endowed with rich, lush and verdant rainforests inwhich varied, rare and unique species of flora and faunamay be found. These rainforests contain a genetic,biological and chemical pool which is irreplaceable;they are also the habitat of indigenous Philippineculture which have existed, endured and flourishedsince time immemorial. Scientific evidence reveals thatin order to maintain a balanced and healthful ecology,the country’s land area should be utilized on the basisof the a ratio of the fifty –four per cent (54%) for forestcover and forty-six per (46%) for agricultural,residential, industrial, commercial and other uses. Thedistortion and disturbance of this balance as aconsequence of the deforestation have resulted in ahost of environmental tragedies, such as

a) water shortages resulting from the drying upof the water table, otherwise known as the

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“aquifer,” as well as of rivers, brooks andstreams,

b) salinization of the water table as a result ofintrusion therein of salt water, incontrovertibleexamples of which may be found in the islandof Cebu and Municipality of Racoor, Cavite,

c) massive erosion and the consequential loss ofsoil fertility and agricultural productivity, withthe volume of soil eroded estimated at onebillion (1,000,000,000) cubic meters perannum-approximately the size of the entireisland of Catanduanes,

d) the endangering and extinction of the country’sunique, rare and varied flora and fauna,

e) the disturbance and dislocation of culturalcommunities , including the disappearance ofthe Filipino’s indigenous cultures,

f) the siltation, of rivers and seabed’s andconsequential destruction of corals and otheraquatic life leading to a critical reduction inmarine resource productivity,

g) recurrent spells of drought as is presentlyexperienced by the entire country,

h) increasing velocity of typhoon winds whichresult from the absence of the windbreakers,

i) the flooding of lowlands and agriculturalplains arising from the absence of theabsorbent mechanism of forests,

j) the siltation and shortening of the lifespan ofmulti-billion peso dams constructed andoperated for the purpose of supplying waterfor domestic uses, irrigation and generationof electric power, and

k) the reduction of the earth’s capacity to processcarbon dioxide gases which has led toperplexing and catastrophic climatic changessuch as the phenomenon of global warming,otherwise known as the “greenhouse effect.”

Plaintiffs further assert that the adverse and detrimentalconsequences of continued deforestation are so capableof unquestionable demonstration that the same maybe submitted as a matter of judicial notice. Thisnotwithstanding, they expressed their intention topresent expert witnesses as well as documentary,

photographic and film evidence in the course of thetrial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead “by reference the foregoingallegations."

8. Twenty-five (25) years ago, the Philippines hadsome sixteen (16) million hectares ofrainforests constituting roughly 53% of thecountry’s land mass.

9. Statellite images taken in 1987 reveal that thereremained no more than 1.2 million hectares ofthe said rainforests or four percent (4.0%) of thecountry’s land area.

10. More recent surveys reveal that a mere850,000 hectares of virgin old-growthrainforests are left, barely 2.8% of the entireland mass of the Philippines archipelago andabout 3.0 million hectares for immature anduneconomical secondary growth forests.

11. Public records reveal that defendant’spredecessors have granted timber licenseagreements (“TLA’s”) to various corporationsto cut the aggregate area of 3.89 millionhectares for commercial logging purposes.

A copy of the TLA holders and thecorresponding areas covered is hereto attachedas Annex.

12. At the present rate of deforestation, i.e. about200.000 hectares per annum or 25 hectares perhour-nighttime, Saturdays, Sundays andholidays included- the Philippines will bebereft of forest resources after the end of thisensuing decade, if not earlier.

13. The adverse effects, disastrous consequence,serious injury and irreparable damage of thiscontinued trend of deforestation to the plaintiffminors’ generation and to the generations yetunborn are evident and incontrovertible. As amatter of fact, the environmental damagesenumerated in paragraph 6 hereof are alreadybeing felt, experienced and suffered by thegeneration of adult plaintiffs.

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14. The continued allowance by defendant of TLAholders to cut and deforest the remaining foreststands will work great damage and irreparableinjury to plaintiffs-especially plaintiff minorsand their successors – who may never see, use,benefit from and enjoy this rare and uniquenatural resource treasure.

This act of defendant constitutes amisappropriation and/ or impairment of thenatural resource property he holds in trust forthe benefit of plaintiff minors and succeedinggenerations.

15. Plaintiffs have a clear and constitutional rightto a balanced and healthful ecology and areentitled to protection by the State in itscapacity as the parens patriae.

16. Plaintiffs have exhausted all administrativeremedies with the defendant’s office. OnMarch 2,nd 1990,plaintiffs served upondefendant a final demand to cancel all loggingpermits in the country. A copy of the plaintiffs’letter dated March, 1,1990 is hereto attachedas Annex “B”.

17. The defendant, however, fails and refuses tocancel the existing TLA’s, to the continuingserious damage and extreme prejudice ofplaintiffs.

18. The continued failure and refusal by defendantto cancel the TLA’s is an act violating therights of plaintiffs, especially plaintiff minorswho may be left with a country that isdesertified (sic), bare, barren and devoid ofthe wonderful flora, fauna and indigenouscultures which the Philippines have beenabundantly blessed with.

19.Defendant’s refusal to cancel theaforementioned TLA’s is manifestly contraryto the public policy enunciated in thePhilippine Environmental Policy which, inpertinent part, states that it is the policy of theState-• to create , develop, maintain and improve

conditions under which man and naturecan thrive in productive and enjoyableharmony with each other;

• to fulfil the social, economic and otherrequirements of present and futuregenerations of the Filipinos and;

• to ensure the attainment of anenvironmental quality that is conducive toa life of dignity and well-being.(F.D.1151,6 June 1977)

20. Furthermore, defendant’s continued refusal tocancel the aforementioned TLA’s iscontradictory to the Constitutional policy ofthe State to:

• effect "a more equitable distribution ofopportunities, income and wealth and‘make full and efficient use of naturalresources (section 1 Article XII ofthe Constitution);"

• protect the nation’s marine wealth’(Section 2,Ibid);

• conserve and promote the nation’scultural heritage and resources (sic),’(Section 14,Article XIV, id.);

• protect and advance the right of thepeople to a balanced and healthful ecologyin accord with the rhythm and harmonyof nature (Section 16,Article II, id).

21. Finally, defendant’s act is contrary to thehighest law of humankind- the natural law andviolate of plaintiffs’ right to self-preservationand perpetuation.

22. There is no other plain, speedy and adequateremedy in law other than the instant action toarrest the unabated hemorrhage of thecountry’s vital life- support systems andcontinued rape of Mother Earth.

On 22nd June 1990, the original defendant, SecretaryFactoran, Jr., filed a Motion to dismiss the complaintbased on two (2) grounds, namely:(1) the plaintiffshave no cause of action against him and (2) the issueraised by the plaintiffs is a political question whichproperly pertains to the legislative or executivebranches of Government. In their July 12th 1990Opposition to the Motion, the petitioners maintainsthat (1) the complaint shows a clear and unmistakablecause of action, (2) the motion is dilatory and (3) theaction presents a justifiable question as it involves thedefendant’s abuse of discretion.

On 18th July 1991, respondent Judge issued an ordergranting the aforementioned motion to dismiss. Inthe said order, not only was the defendant’s claim- thatthe complaint states no cause of action against himand that it raises a political question – sustained, therespondent Judge further ruled that the granting of the

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relief’s prayed for would result in the impairment ofcontracts which is prohibited by the fundamental lawof the land.

Plaintiffs thus filed the instant special civil action forcertiorari under Rule 65 of the Revised Rules of Courtand ask this Court to rescind and set aside the dismissalorder on the ground that the respondent Judge gravelyabused his discretion in dismissing the action. Again,the parents of the plaintiffs-minors not only representtheir children, but have also joined the latter in thiscase.

On 14th May 1992, we resolved to give due course tothe petition and required the parties to submit theirrespective Memoranda after the Office of the SolicitorGeneral (OSG) filed a Comment on behalf of therespondents and the petitioners filed a reply thereto.

Petitioners contended that the complaint clearly andunmistakably states a cause of action as it containssufficient allegations concerning their right to a soundenvironment based on Articles 19,20, and 21 ofthe Civil Code (Human Relations), Section 4 of theExecutive Order (E.O) No.192 creating the DENR,Section 3 of the Presidential decree (P.D) No.1151Philippine Environmental Policy), Section 16,ArticleII of the 1987 Constitution recognizing the right ofpeople to a balanced and healthful ecology, the conceptof generational genocide in Criminal Law and theconcept of man’s inalienable right to self-preservationand self-perpetuation embodied in natural law.Petitioners likewise rely on the respondent’s correlativeobligation, per Section 4 of EO. No. 192, to safeguardthe people’s right to a healthy environment.

It is further claimed that the issue of the respondentSecretary’s alleged grave abuse of discretion ingranting Timber License Agreements (TLAs) to covermore areas for logging than what is available involvesa judicial question.

About the invocation by the respondent Judge of theConstitution’s non-impairment clause; petitionersmaintain that the same does not apply in this casebecause TLAs are not contracts. They likewise submitthat even if TLAs may be considered protected by thesaid clause, it is well settled that they may still berevoked by the State when public interest so requires.

On the other hand, the respondents aver that thepetitioners failed to allege in their complaint a specificlegal right violated by the respondent Secretary forwhich any relief is provided by law. They see nothingin the complaint but vague and nebulous allegations

concerning an “environmental right” which supposedlyentitles the petitioners to the “protection by the statein its capacity as parens patriae.” Such allegations,according to them, do not reveal a valid cause of action.They then reiterate the theory that the question ofwhether logging should be permitted in the country isa political question, which should be properlyaddressed to the executive or legislative branches ofGovernment. They therefore assert that the petitioners’recourse is not to file an action in court, but to lobbybefore Congress for the passage of a bill that wouldban logging totally.

As to the matter of the cancellation of the TLAs,respondents submit that the same cannot be done bythe State without due process of law. Once issued, aTLA remains effective for a certain period of time –usually for twenty-five (25) years. During itsaffectivity, the same can neither be revised norcancelled unless the holder has been found, after duenotice and hearing to have violated the terms of theagreement or other forestry laws and regulations.Petitioners’ proposition to have all the TLAsindiscriminately cancelled without the requisitehearing would be violative of the requirements of dueprocess.

Before going any further, we must first focus on someprocedural matters. Petitioners instituted Civil CaseNo. 90-777 as a class suit. The original defendant andthe present respondent did not take issue with thismatter. Nevertheless, we hereby rule that the said civilcase is indeed a class suit. The subject matter of thecomplaint is of common and general interest not justto several, but to all citizens of the Philippines.Consequently, since the parties are so numerous, itbecomes impracticable, if not totally impossible, tobring all of them before the court. We likewise declarethat the plaintiffs therein are numerous andrepresentative enough to ensure the full protection ofall concerned interests. Hence, all the requisites forthe filing of a valid class suit under Section 12, Rule 3of the Revised Rules of Court are present both in thesaid civil case and in the instant petition, the latterbeing but an incident to the former.

This case, however, has a special and novel element.Petitioners minors assert that they represent theirgeneration as well as generations yet unborn. We findno difficulty in ruling that they can, for themselves,for others of their generation and for the succeedinggenerations, file a class suit. Their personality to sueon behalf of the succeeding generations can only bebased on the concept of intergenerational responsibilityin so far as the right to a balanced and healthy ecology

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is concerned. Such a right, as hereinafter expounded,considers the “rhythm and harmony of nature.” Naturemeans the created world in its entirety.10 Such rhythmand harmony indispensably include, inter alia, thejudicious disposition, utilization, management, renewaland conservation of the country’s forest, mineral, land,waters, fisheries, wildlife, off-shore areas and othernatural resources to the end that their exploration,development and utilization be equitably accessibleto the present as well as future generation 11.

Needless to say, every generation has a responsibilityto the next to preserve that rhythm and harmony forthe full enjoyment of a balanced and healthy ecology.But a little different, the minors’ assertion of their rightto a sound environment constitutes, at the same time,the performance of their obligation to ensure theprotection of that right for the generations to come.

The locus standi of the petitioners having thus beenaddressed, we shall now proceed to the merits of thepetition.

After a careful perusal of the complaint in questionand a meticulous consideration and evaluation of theissues raised and arguments adduced by the parties,we do not hesitate to find for the petitioners and ruleagainst the respondent Judge’s challenged order forhaving been issued with grave abuse of discretionamounting to lack of jurisdiction. The pertinentportions of the said order read as follow:

“After a careful and circumspect evaluation of theComplaint, the Court cannot help but agree with thedefendant. For although we believe that plaintiffs havebut the noblest of all intentions, it (sic) fell short ofalleging, with sufficient definiteness, a specific legalright they are seeking to enforce and protect, or aspecific legal wrong they are seeking to prevent andredress (Sec. 1, Rule 2, RRC). Furthermore, the Courtnotes that the complaint is replete with vagueassumptions and vague conclusions based onunverified data. In fine, plaintiffs fail to state a causeof action in its complaint against the herein defendant,[sic]

Furthermore, the Court firmly believes that the matterbefore it, being impressed with political color andinvolving a matter of public policy, may not be takencognizance of by this Court without doing violence tothe sacred principle of “Separation of Powers” of thethree (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot,no matter how we stretch our jurisdiction, grant the

relief’s prayed for by the plaintiffs, i.e., to cancel allexisting timber license agreements in the country andto cease and desist from receiving, accepting,processing renewing or approving new timber licenseagreements. For to do otherwise would amount to“impairment of contracts” abhorred (sic) by thefundamental law.”12

We do not agree with the trial court’s conclusion thatthe plaintiffs failed to allege with sufficient definitenessa specific legal wrong committed, and that thecomplaint is replete with vague assumptions andconclusions based on unverified data. A reading of thecomplaint itself belies these conclusions.

The complaint focuses on one specific fundamentallegal right – the right to a balanced and healthy ecologywhich, for the first time in our nation’s constitutionalhistory, is solemnly incorporate in the fundamental law.Section 16, Article 11 of the 1987 Constitutionexplicitly provides:

“Sec. 16. The State shall protect and advance the rightof the people to a balanced and healthy ecology inaccord with the rhythm and harmony of nature.”

This right unites with the right to health, which isprovided for in the preceding section of the samearticle.

“Sec. 15. The State shall protect and promotethe right to health of the people and instillhealth consciousness among them.”

While the right to a balanced and healthful ecology isto be found under the Declaration of Principles andState Policies and not under the Bill of Rights, it doesnot follow that it is less important than any of the civiland political rights enumerated in the latter. Such aright belongs to a different category of rights altogetherfor it concerns nothing less than self-preservation andself-perpetuation – aptly and fittingly stressed by thepetitioners – the advancement of which may even besaid to predate all governments and constitutions. Asa matter of fact, these basic rights need not even bewritten in the Constitution for they are assumed to existfrom the inception of humankind. If they are nowexplicitly mentioned in the fundamental charter, it isbecause of the well-founded fear of the framers thatunless the rights to a balanced and healthful ecologyand to health are mandated as state policies by theConstitution itself, thereby highlighting theircontinuing importance and imposing upon the state asolemn obligation to preserve the first and protect andadvance the second, the day would not be too far when

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all else would be lost not only for the presentgeneration, but also for those to come – generationswhich stand to inherit nothing but parched earthincapable of sustaining life.

The right to a balanced and healthful ecology carrieswith it the correlative duty to refrain from impairingthe environment. During the debates on this right inone of the plenary sessions of the 1986 ConstitutionalCommission, the following exchange transpiredbetween Commissioner Wilfrido Villacorta andCommissioner Adolfo Azcuna who sponsored thefunction in question:

“MR. VILLACORTA:Does this section mandate the State to providesanctions against all forms of pollution – air, waterand noise pollution?

MR. AZCUNA:Yes, Madam President. The right to healthful (sic)environment necessarily carries with it the correlativeduty of not impairing the same and, therefore, sanctionsmay be provided for impairment of environmentalbalance.”13

The said right implies, among many other things, thejudicious management and conservation of thecountry’s forests. Without such forests, the ecologicalor environmental balance would be irreversiblydisrupted.

Conformably with the enunciated right to a balancedand healthful ecology and the right to health, as wellas the other related provisions of the Constitutionconcerning the conservation, development andutilization of the country’s natural resources, thePresident Corazon C. Aquino promulgated on 10 June1987 E.O. No. 192,15 Section 4 of which expresslymandates that the Department of Environment andNatural Resources “shall be the primary governmentagency responsible for the conservation, management,development and proper us of the country’senvironment and natural resources, specifically forestand grazing lands, mineral resources, including thosein reservation and watershed areas, and lands of thepublic domain, as well as the licensing and regulationof all natural resources as may be provided for by lawin order to ensure equitable sharing of the benefitsderived therefrom for the welfare of the present andfuture generations of Filipinos. Section 3 therefrommakes the following statement of policy:

“Sec. 3. Declaration of Policy. – It is herebydeclared the policy of the State to ensure the

sustainable use, development, management,renewal and conservation of the country’s forest,mineral, land, off-shore areas and other naturalresources, including the protection andenhancement of the quality of the environment,and equitable access of the different segmentsof the population to the development and use ofthe country’s natural resources; not only for thepresent generation but for future generations aswell. It is also the policy of the state to recognizeand apply a true value system including socialand environmental cost implications relative totheir utilization, development and conservationof our natural resources.”

This policy declaration is substantially re-stated in TitleXIV, Book IV of the Administrative Code of 1987,16specifically in Section 1 thereof which reads:

“Sec. I. Declaration of Policy. – (1) The stateshall ensure, for the benefit of the Filipinopeople, the full exploration and developmentas well as the judicious disposition, utilization,management, renewal and conservation of thecountry’s forest, mineral, land, waters,fisheries, wildlife, off-shore areas and othernatural resources, consistent with the necessityof maintaining a sound ecological balance andprotecting and enhancing the quality of theenvironment and the objective of making theexploration, development and utilization ofsuch natural resources equitably accessible tothe different segments of the present as well asfuture generations.2) The State shall, likewise, recognize and applya true value system that takes into accountsocial and environmental cost implicationsrelative to the utilization, development andconservation of our natural resources.”

The above provision stresses “the necessity ofmaintaining a sound ecological balance and protectingand enhancing the quality of the environment.” Section2 of the same title, on the other hand, specificallyspeaks of the mandate of the DENR; however, it makesparticular reference to the fact of the agency’s beingsubject to law and higher authority. The said section provides:

“Sec.2, mandate. – (1) The Department ofEnvironment and Natural Resources shall beprimarily responsible for the implementationof the foregoing policy.2) It shall, subject to law and higher authority,be in charge of carrying out the State’s

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constitutional mandate to control and supervisethe exploration, development, utilization andconservation of the country’s naturalresources.”

Both E.O. No. 192 and the Administrator Code of 1987have set the objectives which will serve as the basesfor policy formulation, and have defined the powersand functions of the DENR.

It may, however, be recalled that even before thenotification of the 1987 Constitution, specific statutesalready paid special attention to the “environmentalright” of the present and future generations. On 6th June1977, P.D. No. 1151 (Philippine environmental Policy)and P.D. No. 1152 (Philippine Environment Code)were issued. The former “declared a continuing policyof the State (a) to create, develop, maintain and improveconditions under which man and nature can thrive inproductive and enjoyable harmony with each other,(b) to fulfil the social, economic and other requirementsof present and future generations of Filipinos, and (c)to ensure the attainment of an environmental qualitythat is conducive to a life of dignity and well-being.”As its goal, it speaks of the “responsibilities of eachgeneration as trustee and guardian of the environmentfor succeeding generations.”18 The latter statute, onthe other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those theyrepresent)to a balanced and healthful ecology is as clearas the DENR’s duty – under its mandate and by virtueof its powers and functions under E.O. No. 192 andthe Administrative Code of 1987 – to protect andadvance the said right.

A denial or violation of that right by the other who hasthe correlative duty or obligation to respect or protectthe same gives rise to a cause of action. Petitionersmaintain that the granting of the TLAs, which theyclaim was done with grave abuse of discretion, violatedtheir right to a balanced and healthful ecology; hence,the full protection thereof requires that no further TLAsshould be renewed or granted.

A cause of action is defined as:

“... an actor or omission of one party inviolation of the legal right or rights of the other;and its essential elements are legal right of theplaintiff, correlative obligation of the defendant,and act or omission of the defendant in violationof said legal right.”19

It is settled in this jurisdiction that in a motion todismiss based on the ground that the complaint failsto state a cause of action, the question submitted tothe court for resolution involves the sufficiency of thefacts alleged in the complaint itself. No other mattershould be considered; furthermore, the truth or falsityof the said allegations are beside the point for the truththereof is deemed hypothetically admitted. The onlyissue to be resolved in such a case is: admitting suchalleged facts to be true, may the court render a validjudgment in accordance with the prayer in thecomplaint? In Militante vs Edrosolano, this Courtlaid down the rule that the judiciary should “exercisethe utmost care and circumspection in passing upon amotion to dismiss on the ground of the absence of acause of action, lest, by its failure to manifest a correctappreciation of the facts alleged and deemedhypothetically admitted, what the law grants orrecognizes is effectively nullified. If that happens, thereis a blot on the legal order. The law itself stands indisrepute.”

After a careful examination of the petitioners’complaint, we find the statements under theintroductory affirmative allegations, as well as thespecific averments under the sub-heading CAUSE OFACTION, to be adequate enough to show, prima facie,the claimed violation of their rights. On the basisthereof, they may thus be granted, wholly or partly,the reliefs prayed for. It bears stressing, however, thatin so far as the cancellation of the TLAs is concerned,there is the need to implead, as party defendants, thegrantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777cannot be said to raise a political question. Policyformulation or determination by the executive orlegislative branches of Government is not, squarely put,in issue. What is principally involved is theenforcement of a right vis-a-vis policies alreadyformulated and expressed in legislation. It must,nonetheless, be emphasized that the political questiondoctrine is no longer the insurmountable obstacle tothe exercise of judicial power or the impenetrableshield that protects executive and legislative actionsfrom judicial inquiry or review. The second paragraphof section 1, Article VIII of the Constitution states that:“Judicial power includes the duty of the courts ofjustice to settle actual controversies involving rightswhich are legally demandable and enforceable, and todetermine whether or not there has been a grave abuseof discretion amounting to lack of excess of jurisdictionon the part of any branch or instrumentality of theGovernment.”

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Commenting on this provision in his book, PhilippinePolitical Law, Mr. Justice Isagani A. Cruz, adistinguished member of this Court, says:

“The first part of the authority represents thetraditional concept of judicial power, involvingthe settlement of conflicting rights as conferredby law. The second part of the authorityrepresents a broadening of judicial power toenable the courts of justice to review what wasbefore forbidden territory, to wit, the discretionof the political departments of thegovernment.”

As worded, the new provision vests in the judiciary,and particularly the Supreme Court, the power to ruleupon even the wisdom of the decisions of the executiveand the legislature and to declare their acts invalid forlack of excess of jurisdiction because tainted with graveabuse of discretion. The catch, of course, is the meaningof grave abuse of discretion, which is a very elasticphrase that can expand or contract according to thedisposition of the judiciary.”

In Daza vs. Singson , Mr. Justice Cruz, now speakingfor the Court, noted:

“In the case now before us, the jurisdictionalobjection becomes even less tenable anddecisive. The reason is that, even if we wereto assume that the issue presented before uswas political in nature, we would still not beprecluded from resolving it under theexpanded jurisdiction conferred upon us thatnow covers, in proper cases, even the politicalquestion. Article VII, Section 1, of theConstitution clearly provides...”

The last ground invoked by the trial court in dismissingthe complaint is the non-impairment of contracts clausefound in the Constitution. The court declaredthat:“The Court is likewise of the impression that it cannot,no matter how we stretch our jurisdiction, grant thereliefs prayed by the plaintiffs, i.e., to cancel allexisting timber license agreements in the country andto cease and desist from receiving, accepting,processing, renewing or approving new timber licenseagreements. For to do otherwise would amount to“impairment of contracts” abhorred (sic) by thefundamental law.”25

We are not persuaded at all; on the contrary, we areamazed, if not shocked, by such a sweepingpronouncement. In the first place, the respondent

Secretary did not, for obvious reasons, even invoke inhis motion to dismiss the non-impairment clause. Ifhe had done so, he would have acted with utmostinfidelity to the Government by providing undue andunwarranted benefits and advantages to the timberlicense holders because he would have forever boundthe Government to strictly respect the said licensesaccording to their terms and conditions regardless ofchanges in policy and the demands of public interestand welfare. He was aware that as correctly pointedout by the petitioners, into every timber license mustbe read Section 20 of the Forestry Reform Code (PD.No. 705) which provides:

“... provided, That when the nationalinterest so requires, the President may amend,modify, replace or rescind any contract,concession, permit, licenses or any other formof privilege granted herein ..."

Needless to say, all licenses may thus be revoked orrescinded by executive action. It is not a contract,property or a property right protected by the dueprocess clause of the Constitution. In Tan vs. Directorof Forestry, this Court held:

“ ... A timber license is an instrument bywhich the State regulates the utilization anddisposition of forest resources to the end thatpublic welfare is promoted. A timber license isnot a contract within the purview of the processclause; it is only a license or privilege, whichcan be validly withdrawn whenever dictatedby public interest or public welfare as in thiscase.

“A license is merely a permit or privilege to dowhat otherwise would be unlawful, and is nota contract between the authority, federal, state,or municipal, granting it and the person towhom it is granted; neither is it property or aproperty right, nor does it create a vested right;nor …. Taxation (37 CIJ.168). Thus, this Courtheld that the granting of license does not createirrevocable rights, neither is it property orproperty rights (People vs. Ong.. 54 O.G. 756)..."

We reiterated this pronouncement in Felipe Yamael,Jr. & Co.. Inc. vs. Deputy Executive Secretary:27

“... Timber licenses, permits and licenseagreements are the principal instruments bywhich the State regulates the utilization anddisposition of forest resources to the end that

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public welfare is promoted. And it can hardlybe gainsaid that they merely evidence aprivilege granted by the State to qualifiedentities, and do not vest in the latter apermanent or irrevocable right to theparticular concession area and the forestproducts therein. They may be validlyamended, modified, replaced or rescinded bythe Chief Executive when national interestsso require, Thus, they are not deemedcontracts within the purview of the dueprocess of law clause [See section 3(ee) and20 of Pres. Decree No. 705, as amended.Also, Tan vs. Director of Forestry, G.R. No.L-24548, October 27, 1983, 125 SCRA 302].”

Since timber licenses are not contracts, the non-impairment clause, which reads:

“SEC. 10, No law impairing the obligation of contractsshall be passed” cannot be invoked.In the second place, even if it is to be assumed that thesame are contracts, the instant case does not involve alaw or even an executive issuance declaring thecancellation or modification of existing timberlicenses. Hence, the non-impairment clause cannot asyet be invoked. Nevertheless, granting further that alaw has actually been passed mandating cancellationsor modifications, the same cannot still be stigmatizedas a violation of the non-impairment clause. This isbecause by its very nature and purpose, such a lawcould have only been passed in the exercise of thepolice power of the state for the purpose of advancingthe right of the people to a balanced and healthfulecology, promoting their health and enhancing thegeneral welfare. In Aba vs. Foster Wheeler Corp,this court stated:

“The freedom of contract, under our system ofgovernment, is not meant to be absolute. Thesame is understood to be subject to reasonablelegislative regulation aimed at the promotion ofpublic health, moral, safety and welfare. In otherwords, the constitutional guaranty of non-impairment of obligations of contract is limitedby the exercise of the police power of the State,in the interest of public health, safety, moral andgeneral welfare.”

The reason for this is emphatically set forth in Nebiavs. New York, quoted in Philippine American LifeInsurance Co. vs. Auditor General,31 to wit:

“Under our form of government the use ofproperty and the making of contracts are

normally matters of private and not of publicconcern. The general rule is that both shall befree of governmental interference. But neitherproperty rights nor contract rights are absolute;for government cannot exist if the citizen mayat will use his property to the detriment of hisfellows, or exercise his freedom of contract towork them harm. Equally fundamental with theprivate right is that of the public to regulate itin the common interest.”

In short, the non-impairment clause must yield to thepolice power of the state.

Finally, it is difficult to imagine, as the trial court did,how the non-impairment clause could apply withrespect to the prayer to enjoin the respondent Secretaryfrom receiving, accepting, processing, renewing orapproving new timber licenses for, save in cases forrenewal, no contract would have as of yet existed inthe other instances. Moreover, with respect to renewal,the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instantpetition is hereby GRANTED, and the challengedOrder of respondent judge of 18 July 1991 dismissingcivil case No. 90-777 is hereby set aside. Thepetitioners may therefore amend their complaint toimplead as defendants the holders or grantees of thequestioned timber license agreements.

No pronouncement as to costs.

SO ORDEREDCONCUR

(No part: related to one of the parties)

ANDRES R. NARVASACHIEF JUSTICE(Please see separate opinion concurring in the result)

(SAGANI A. CRUZAssociate Justice

FLORENTINO P. FELICIANOAssociate Justice

TEODORO R. PADILLAAssociate Justice

ABDULWAHID A. BIDINAssociate Justice

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CAROLINA C. GRINO-AQUINOAssociate Justice

FLORENZ D. REGALADOAssociate Justice

FERIDA RUTH P. ROMEROAssociate Justice

RODOLFO A. NOCONAssociate Justice

JOSUE N. BELLOSILLOAssociate Justice

JOSE A.R. MELOAssociate Justice

CAMILO D. QUIASONDEYWATO S. PUNO (No part in Associate Justicethe deliberations)

No part. I was not yet with the Court when the casewas deliberated upon.

JOSE C. VILUGAssociate Justice

CERTIFICATIONPursuant to Article VIII, Section 13 of the Constitution,it is hereby certified that the conclusions in the abovedecision were reached in consultation before the casewas assigned to the writer of the opinion of the court.

ANDRES R. NARVASAChief JusticeCLERK OF COURT

G.R. No. 101083(Juan Antonio, Anna Rosario and Jose Alfonso, allsurnamed Oposa, minors, and represented by theirparents Antonio and Rizalina Oposa, et al. V. TheHonourable Fulgencio S. Factoran, JR. and theHonourable Eriberto U. Rosario.)

Promulgated:Feliciano, J.: Concurring in the resultJuly 30 1993

I join in the result reached by my distinguished brotherin the Court, Davide, Jr., J. in this case which, to mymind, is one of the most important cases decided bythis Court in the last few years. The seminal principleslaid down in this decision are likely to influenceprofoundly the direction and course of the protection

and management of the environment, which of courseembraces the utilization of all the natural resources inthe territorial base of our polity. I have therefore soughtto clarify, basically to myself, what the Court appearsto be saying.

The Court explicitly states that petitioners have thelocus standi necessary to sustain the bringing andmaintenance of this suit (Decision, pp. 11-12). Locusstandi is not a function of petitioners’ claim that theirsuit is properly regarded as a class suit. I understandlocus standi to refer to the legal interest which aplaintiff must have in the subject matter of the suit,because of the very broadness of the concept of “class”here involved – membership in this “class” appears toembrace everyone living in the country whether nowor in the future – it appears to me that everyone whomay be expected to benefit from the course of actionpetitioners seek to require public respondents to take,is vested with the necessary locus standi. The Courtmay be seen therefore to be recognizing a beneficiaries’right of action in the field of environmental protection,as against both the public administrative agencydirectly concerned and the private persons or entitiesoperating in the field or sector of activity involved.Whether such a beneficiaries’ right of action may befound under any and all circumstances, or whethersome failure to act, in the first instance, on the part ofthe governmental agency concerned must be shown(“prior exhaustion of administrative remedies”), is notdiscussed in the decision and presumably is left forfuture determination in an appropriate case.

The Court has also declared that the complaint hasalleged and focused upon “one specific fundamentallegal right” the right to a balanced and healthfulecology” (Decision, p.14). There is no question that“the right to a balanced and healthful ecology” is“fundamental” and that, accordingly, it has been“constitutionalized.” But although it is fundamentalin character, I suggest, with every great respect, that itcannot be characterized as “specific,” without doingexcessive violence to language. It is in fact verydifficult to fashion language more comprehensive inscope and generalized in character that a right to “ abalanced and healthful ecology.” The list of particularclaims which can be subsumed under this rubricappears to be entirely open-ended; prevention andcontrol of emission of toxic fumes and smoke fromfactories and motor vehicles of discharge of oil,chemical effluents, garbage and raw sewage into rivers,inland and coastal waters by vessels, oil rigs, factories,mines and whole communities; of dumping of organicand inorganic wastes on open land, streets andthoroughfares; failure to rehabilitate land after strip-

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mining or open-pit mining; kaingin or slash-and-burnfarming; destruction of fisheries, coral reefs and otherliving sea resources through the use of dynamite orcyanide and other chemicals; contamination of groundwater resources; loss of certain species of fauna andflora; and so on. The other statements pointed out bythe court: Section 3, Executive Order No. 192 dated10th June 1987; Section 1, Title XIV, Book IV of the1987 Administrative Code; and P.O. No. 1151, dated6th June 1977 – all appear to be formulations of policy,as general and abstract as the constitutional statementsof basic policy in Article II, Section 16 (“the right – toa balanced and healthful ecology”) and 15 (“the rightto health”).

P.O. No. 1152, also dated 6th June 1977, entitled “ThePhilippine Environment Code,” is, upon the other hand,a compendious collection of more “specificenvironment management policies” and “environmentquality standards” (fourth “Whereas” clause,Preamble) relating to an extremely wide range oftopics:

• air quality management;• water quality management;• land use management;• natural resources management and

conservation embracing;• fisheries and aquatic resources;• wild life;• forestry and soil conservation;• flood control and natural calamities;• energy development;• conservation and utilization of surface and

ground water;• mineral resources

Two (2) points are worth making in this connection.Firstly, neither petitioners nor the Court has identifiedthe particular provision or provisions (if any) of thePhilippine Environment Code which give rise to aspecific legal right which petitioners are seeking toenforce. Secondly, the Philippine Environment Codeidentifies with notable care the particular governmentagency charged with the formulation andimplementation of guidelines and programs dealingwith each of the headings and sub-headings mentionedabove. The Philippine Environment Code does not inother words, appear to contemplate action of the partof private persons who are beneficiaries ofimplementation of that code.

As a matter of logic, by finding petitioners’ cause ofaction as anchored on a legal right comprised in the

constitutional statements above noted, the Court is ineffect saying that Section 15 (and Section 16) of ArticleII of the Constitution are self executing and judiciallyenforceable even in their present form. Theimplications of this doctrine will have to be exploredin future cases; those implications are too large andfar-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, beforethe trial court, show a more specific legal right – aright case in language of a significantly lower order ofgenerality than Article II (15) of the Constitution –that is or may be violated by the action, or failures toact, imputed to the public respondent by petitioners sothat the trial court can validly render judgment grantingall or part of the relief prayed for. To my mind, thecourt should be understood as simply saying that sucha more specific legal right or rights may well exist inour corpus of law, considering the general policyprinciples found in the Constitution and the existenceof the Philippine Environment Code, and that the trialcourt should have given petitioners an effectiveopportunity so to demonstrate, instead of aborting theproceedings on a motion to dismiss.

It seems to me important that the legal right which isan essential component of a cause of action be aspecific, operable legal right, rather than aconstitutional or statutory policy, for at least two (2)reasons. One is that unless the legal right claimed tohave been violated or disregarded is given specificationin operational terms, defendants may well be unableto defend themselves intelligently and effectively: inother words, there are due process dimensions to thismatter.

The second is a broader-gauge consideration – wherea specific violation of law or applicable regulation isnot alleged or proved, petitioners can be expected tofall back on the expanded conception of judicial powerin the second paragraph of Section 1 of Article VIII ofthe Constitution which reads:

"Section 1...Judicial powers includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable,and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

When substantive standards as general as “the right toa balanced and healthy ecology” and “the right to

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health” are combine with remedial standards as broadranging as “ a grave abuse of discretion amounting tolack or excess of jurisdiction,” the result will be, it isrespectfully submitted, to propel courts into theuncharted ocean of social and economic policy making.At least in respect of the vast area of environmentalprotection and management, our courts have no claimto special technical competence and experience andprofessional qualification. Where no specific, operablenorms and standards are shown to exist, then the policymaking department – the legislative and executivedepartments – must be given a real and effectiveopportunity to fashion and promulgate those normsand standards, and to implement them before the courtsshould intervene.

My learned brother Davide, Jr., J. rightly insists thatthe timber companies, whose concession agreementsor TLA’s petitioners demand public respondents shouldcancel, must be impleaded in the proceedings below.It might be asked that, if petitioners’ entitlement to the

relief demanded is not dependent upon proof of breachby the timber companies of one or more of the specificterms and conditions of their concession agreements(and this, petitioners implicitly assume), what willthose companies litigate about? The answer I suggestis that they may seek to dispute the existence of thespecific legal right petitioners should allege, as wellas the reality of the claimed factual nexus betweenpetitioners’ specific legal right and the claimedwrongful acts or failures to act of public respondentadministrative agency. They may also controvert theappropriateness of the remedy or remedies demandedby petitioners, under all the circumstances, which exist.

I vote to grant the Petition for Certiorari because theprotection of the environment, including the forestcover of our territory, is of extreme importance for thecountry. The doctrines set out in the Court’s decisionissued today should, however, be subjected to closerexamination.

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K. RAMAKRISHNAN AND OTHERS

VERSUS

STATE OF KERALA AND OTHERS (smoking case)

High Court of Kerala at Ernakulam (Ag. Chief Justice Sri. Ar. Lakshmanan & Justice Sri. K. Narayanakurup):February 12th 1999

JUDGMENT

NARAYANA KURUP. J.

1. This is an original petition highlighting the publichealth issue of the dangers of passive smoking andin which prayers are made to declare that smokingof tobacco in any form, whether in the form ofcigarette, cigar, beedies or otherwise in publicplaces is illegal, unconstitutional and violative ofArticle 21 of the Constitution of India and issue a writin the nature of mandamus or such other writcommanding the respondents to take appropriateand immediate measures to prosecute and punishall persons guilty of smoking in public places,treating the said act as satisfying the definition of‘public nuisance’ as defined under Section 268 ofthe Indian Penal Code. We heard Mr. P. Deepak,counsel for the petitioners, the Advocate Generalfor the State and counsel for other respondents.

2. In the writ petition, originally there were onlyrespondents I to 9 viz., State of Kerala, Directorof Panchayath, Director General of Police,Commissioners of Police, ThiruvananthapuramKochi and Kozhikode and Commissioners ofThiruvananthapuram, Kochi and KozhikodeMunicipal Corporations. During the pendency ofthe Original Petition, this court suo-moto impleadedadditional respondents 10 to 52 on whom serviceis complete.

3. Before proceeding to discuss the legal issues arisingin this original petition, we feel that it is useful torefer to certain facts and figures of startlingrevelations which has a direct bearing on thedangers of smoking, active and passive, and itshorrifying impact on public health.

ON SMOKING GENERALLY

4. One million Indians die every year from tobacco-related diseases. This is more than the number of

deaths due to motor accidents, AIDS, alcohol anddrug abuse put together, says the Indian MedicalAssociation (lMA) and the Indian Academy ofPediatrics (lAP), quoting studies.

5. Cigarette smoking is the major preventable causeof death in America contributing to an estimated350000 deaths annually. Epidemiological andexperimental evidence has identified cigarettesmoking as the primary cause of lung cancer andchronic obstructive pulmonary diseases (COPD)and as a major risk factor for coronary heartdisease. Smoking has been associated with othercancers, cerebrovascular and peripheral vasculardiseases and peptic ulcer disease. Smokers alsosuffer more acute respiratory illness. Cigarettesmoke consisting of particles dispersed in a gasphase is a complex mixture of thousands ofcompounds produced by the incompletecombustion of the tobacco leaf. Smokeconstituents strongly implicated in causing diseaseare nicotine and tar in the particulate phase andcarbon monoxide in the gas phase. Smokers havea 70 per cent higher mortality rate thannonsmokers. The risk of dying increases with theamount and duration of smoking and is higher insmokers who inhale. Coronary heart disease is thechief contributor to the excess mortality amongcigarette smokers followed by lung cancer andchronic obstructive pulmonary disease (COPD).Life expectancy is significantly shortened bysmoking cigarettes. Tobacco smoke also getsdissolved in the saliva and is swallowed, exposingthe upper gastrointestinal tract to carcinogens.

A strong association between smoking and lungcancer has been demonstrated in multipleprospective and retrospective epidemiologicalstudies and corroborated by autopsy evidence.Lung cancer has been the leading cause of cancerdeaths in men since the 1950s and it surpassedbreast cancer as a leading cause of cancer deaths inwomen in 1985. Male smokers have a tenfold

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higher risk of developing lung cancer, and the riskincreases with the number of cigarettes smoked.There is also strong evidence that smoking is amajor cause of cancers of the larynx, oral cavityand esophagus. The risk of these cancers increaseswith the intensity of exposure to cigarette smokeeither active or passive. Epidemiological studiesshow an association between smoking and cancersof the bladder, pancreas, stomach, and uterinecervix.

6. Cigarette smoking is a major independent riskfactor for coronary artery disease. Retrospectiveand prospective epidemiological studies havedemonstrated a strong relationship betweensmoking and coronary morbidity and mortality inboth men and women. The coronary disease deathrate in smokers is 70% higher than in nonsmokers,and the risk increases with the amount of cigaretteexposure. The risk of sudden death is two to fourtimes higher in smokers. Smoking is also a riskfactor for cardiac arrest and severe malignantarrhythmia’s. In addition to increased coronarymortality, smokers have a higher risk of nonfatalmyocardial infarction or unstable angina. Patientswith angina lower their exercise tolerance if theysmoke. Women who smoke and use oralcontraceptives or post-menopausal estrogenreplacement greatly increase their risk ofmyocardial infarction.

7. Autopsy studies demonstrate more atheromatouschanges in smokers than nonsmokers. Carbonmonoxide in cigarette smoke decreases oxygendelivery to endothelial tissues. In addition,smoking may trigger acute ischemia. Carbonmonoxide decreases myocardial oxygen supplywhile nicotine increases myocardial demand byreleasing catecholamines that raise blood pressure,heart rate and contractility. Carbon monoxide andnicotine also induce platelet aggregation that maycause occlusion of narrowed vessels. Cigarettesmoking is the most important risk factor forperipheral vascular disease. In patients withintermittent claudication, smoking lowers exercisetolerance and may shorten graft survival aftervascular surgery. Smokers have more aorticatherosclerosis and an increased risk of dying froma ruptured aortic aneurysm. Smokers under the ageof 65 have a higher risk of dying fromcerebrovascular disease and women who smokehave a greater risk of subarachnoid hemorrhage,especially if they also use oral contraceptives.

Smoking and Pulmonary Disease

8. Cigarette smoking is the primary cause of chronicbronchitis and emphysema. Smokers have ahigher prevalence of respiratory symptoms thannonsmokers. Studies of pulmonary functionindicate that impairment exists in asymptomaticas well as symptomatic smokers. Smokers have ahigher risk of acute as well as chronic pulmonarydisease. Inhaling cigarette smoke impairspulmonary clearance mechanisms by paralyzingciliary transport. This may explain thesusceptibility to viral respiratory infectionsincluding influenza. Smokers who develop acuterespiratory infections have longer and more severecourses with a more prolonged cough.

Other Health Consequences

9. Smokers have a higher prevalence of peptic ulcerdiseases and a higher case-fatality rate. Smokinghas been associated with increased osteoporosisin men and post-menopausal women. Femalesmokers weigh less than nonsmokers and havean earlier age of menopause: both of these factorsare associated with osteoporosis and maycontribute to the relationship between smokingand osteoporosis. Moreover, smoking depressesserum estrogen levels in post-menopausal womentaking estrogen replacement therapy.

ON PASSIVE SMOKING

Passive Smoking (Environmental Smoke Exposure)

10. Nonsmokers involuntarily inhale the smoke ofnearby smokers, a phenomenon known as passivesmoking. Wives, children and friends of smokersare a highly risk-prone group. Inhalation ofsidestream smoke by a nonsmoker is definitelymore harmful to him than to the actual smoker ashe inhales more toxins. This is because sidestreamsmoke contains three times more nicotine, threetimes more tar and about 50 times more ammonia.Passive smoking (because of smoking by theirfathers) could lead to severe complications inbabies aged below two. It is pointed out that inIndia hospital admission rates are 28 per centhigher among the children of smokers. Thesechildren have acute lower respiratory infectiondecreased lung function, increased eczema andasthma and increased cot deaths. Also, childrenof heavy smokers tend to be shorter.

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11. Passive smoking is associated with an overall 23per cent increase in the risk of coronary heartdisease (CHD) among men and women who hadnever smoked. The following data shows just howheavy is cigarette smoking’s toll on non-smokers.A new “meta-analysis” of data from 14 studiesinvolving 6, 166 individuals with coronary heartdisease (CHD) finds that passive smoking wasassociated with an overall 23 per cent increase inthe risk of CHD among men and women who hadnever smoked. It is estimated that 35,000 to40,000 nonsmokers’ deaths each year in theUnited States can be attributed to passivesmoking. This underscores the need to eliminatepassive smoking as an important strategy toreduce the societal burden of CHD. The UnitedNations health agency insisted that passivesmoking caused lung cancer and that anenvironmental tobacco smoke poses a positivehealth hazard. Research on the subject has foundan estimated 16 per cent increase in the risk ofdeveloping lung cancer among nonsmokingspouses of smokers and an estimated 17 per centrise in risk for work place exposure. The publicis left high and dry over the risks of “second-handsmoke.” For non-smokers, the major source ofcarbon monoxide is from passively inhaledcigarette smoke. Environmental tobacco smoke(ETS) has been shown to reduce lung function inchildren. Its irritant effect could not be ignoredas this is the reason why most people object tobeing the victims of passive smoking. Patientswith asthma find this irritant effect will worsensymptoms. The most remarkable effect ofenvironmental tobacco smoke (ETS) is thedevelopment of lung cancer in passively exposednon-smokers as shown by reports from Japan andGreece. Large number of controlled studies haveconfirmed a relative risk of developing lungcancer in passively exposed subjects. Estimatesfrom the United States have suggested that 3000to 5000 deaths per year from lung cancer can beattributed to passive smoking.

12. Maternal smoking during pregnancy increases risksto fetus and non-smokers chronically exposed totobacco smoke will suffer health hazards.Maternal smoking during pregnancy contributesto fetal growth retardation. Infants born to motherswho smoke weigh an average of 200g less buthave no shorter gestations than infants of non-smoking mothers. Carbon monoxide in smokemay decrease oxygen availability to the fetus andaccount for the growth retardation. Smoking

during pregnancy has also been linked with higherrates of spontaneous abortion, fetal death andneonatal death. When smoking occurs in enclosedareas with poor ventilation such as in buses, barsand conference rooms, high levels of smokeexposure can occur. Acute exposure to smoke-contaminated air decreased exercise capacity inhealthy nonsmokers and can worsen symptomsin individuals with angina, chronic obstructivepulmonary disease (COPD) or asthma. Chronicexposure to smoky air occurs in the workplaceand in the homes of smokers. Non-smokers insmoky workplaces develop small-airwaysdysfunction similar to that observed in lightsmokers. Compared to the children of non-smokers, children whose parents smoke havemore respiratory infections throughout childhood,a higher risk of asthma, and alterations inpulmonary function tests. In recent studies of non-smoking women ,those married to smokers hadhigher lung cancer rates than those married to non-smokers. Chronic smoke exposure may beassociated with increased incidence ofcardiopulmonary disease in nonsmokers.

I3. Environmental tobacco smoke (ETS) alsocontributes to respiratory morbidity of children.Increased platelet aggregation also occurs whena nonsmoker smokes or is passively exposed tosmoke.

Although environmental tobacco smoke (ETS)differs from “mainstream smoke” in several ways,it contains many of the same toxic substances.Infants and toddlers may be especially at riskwhen exposed to environmental tobacco smoke(ETS). Considering the substantial morbidity andeven mortality of acute respiratory illness inchildhood, a doubling in risk attributable topassive smoking clearly represents a serouspediatric health problem. Exposure toenvironmental tobacco smoke (ETS) has beenassociated with increased asthma-related trips tothe emergency room of hospitals. There is nowsufficient evidence to conclude that passivesmoking is associated with additional episodesand increased severity of asthma in children whoalready have the disease. Exposure to passivesmoking may alter children’s intelligence andbehavior and passive smoke exposure inchildhood may be a risk factor for developing lungcancer as an adult Environmental tobacco smoke(ETS) contains more than 4000 chemicals and atleast 40 known carcinogens.

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Nicotine, the addictive drug contained in tobaccoleads to acute increase in heart rate and bloodpressure. ETS also increases platelet aggregation,or blood clotting. It also damages the endotheliumthe layer of cells that line all blood vessels,including the coronary arteries. In addition,nonsmokers who have high blood pressure or highblood cholesterol are at even greater risk ofdeveloping heart diseases from ETS exposure. Aninvestigation in Bristol has found that the childrenof smokers have high levels of cotinine, ametabolite of nicotine in their saliva. The resultsindicated that children who had two smokingparents were breathing in as much nicotine as ifthey themselves were smoking 80 cigarettes ayear. A study published in the “New EnglandJournal of Medicine” found that the children ofsmoking mothers were less efficient at breathing.A study conducted by the Harvard Medical Schoolin Boston concluded that passive exposure tomaternal cigarette smoke may have importanteffects on the development of pulmonary functionin children.

An important discovery is that the cocktail ofchemicals in a smoky room may be more lethalthan the smoke inhaled by the smoker. The “sidestream” smoke contains three times as muchbenezo (a) pyrene (a virulent cause of cancer) sixtimes as much toluene, another carcinogen andmore than 50 times as much dimethylnitrosamine.It has been commented by Dale Sandler of theNational Institute of Environmental Health Studiesin the United States that the potential for damagefrom passive smoking may be greater than has beenpreviously recognized.

14. It can be safely concluded that the dangers ofpassive smoking are real, broader that oncebelieved and parallel those of direct smoke. It haslong been established that smoking harms thehealth of those who smoke.

Now, new epidemiological studies and reviews arestrengthening the evidence that it also harms thehealth of other people nearby who inhale the toxicfumes generated by the smoker particularly fromthe burning end of the cigarette. Such indirect orsecondhand smoking causes death not only by lungcancer but even more by heart attack, the studiesshow. The studies on passive smoking as it is oftencalled, also strengthen the link between parentalsmoking and respiratory damage in children.According to experts, there was little question thatpassive smoking is a major health hazard. What

has swayed many scientists is a remarkableconsistency in findings from different types ofstudies in several countries with improved methodsover those used in the first of such studies a few years ago.

The new findings confirm and advance the earlierreports from the U.S. Surgeon General whoconcluded that passive smoking caused lungcancer. According to Dr. Cedric F. Garland, anexpert in the epidemiology of smoking at theUniversity of California at San Diego “the linksbetween passive smoking and health problems arenow as solid as any finding in epidemiology.” Thenewer understanding of the health hazards ofpassive smoking were underscored in a report at aworld conference on lung health in Bostonrecently. Dr. Stanton A. Glantz of the Universityof California at San Francisco estimated thatpassive smoke killed 50000 Americans a year two-thirds of whom died of heart disease. Passivesmoking ranks behind direct smoking and alcoholas the third leading preventable cause of death.Dr. Donald Shopland of the U.S. National CancerInstitute who has helped to prepare the SurgeonGeneral’s reports on smoking has said: “there’sno question now that passive smoking is also acause of heart disease. The new findings on passivesmoking parallel recent changes in U.S. laws andrules that limit smoking in public places. In recentYears all but four States (Missouri, North Carolina,Tennessee and Wyoming) have passedcomprehensive laws limiting smoking in publicplace. Only a decade ago, many scientists weresceptical about the initial links between passivesmoking and lung cancer.".

15. “Mainstream smoke” is inhaled and consists oflarge particles deposited in the larger airways ofthe lung. “Side stream smoke” is generated fromthe burning end of cigarettes, cigars and pipesduring the smouldering between puffs. It may comefrom someone else’s tobacco or from one’s ownand is the major source of environmental tobaccosmoke (ETS). It is a mixture of irritating gassesand carcinogenic tar particles that reach deeperinto the lungs because they are small. Accordingto scientists, because of incomplete combustionfrom the lower temperatures of a smoulderingcigarette, sidestream smoke is dirtier andchemically different from mainstream smoke.Scientists have found a 30 per cent increase in riskof death from heart attacks among nonsmokersliving with smokers due to passive smoking.Researchers have found that passive smoking

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makes platelets the tiny fragments in the blood thathelp it clot stickier. Platelets can form clots onplaques in fat-clogged arteries to cause heartattacks and they may also play a role in promotingarteriosclerosis, the underlying cause of most heartattacks. Researchers have also shown that passivesmoking affects heart function, decreasing theability of people with and without heart disease toexercise. It has been pointed out that passivesmoking increases the demand on the heart duringexercise and reduces the heart’s capacity to speedup. For people with heart disease, the decreasedfunction can precipitate chest pains from angina.The children exposed to passive smoke since birthhad increased amounts of cholesterol and lowerlevels of HDL, a protein in blood that is believedto provide protection against heart attacks. Theresearchers found that the greater the exposure topassive smoke, the greater was the biochemicalchanges.

16. A pioneering report linking passive smoking andlung cancer came in 1981 from a 14-year Japanesestudy by Dr. Takeshi Hirayama. His researchmethods were criticized at first. Mr. LawrenceGarfinkel, an epidemiologist who is vice-presidentof the American Cancer Society said that he wasat present sceptical of Dr. Hirayama’s report butwas convinced from later studies including his ownthat there was about a 30 per cent increased riskof developing lung cancer from passive smoking.Mr. Garfinkel said a study of 1.2 million Americansnow being completed should help clarify thedegree of risk from all types of cancer and otherdiseases. Dr. Glantz estimated that one-third of the50,000 deaths from passive smoking were fromcancer. In addition to lung cancer, researchers havelinked cancer of the cervix to both mainstream andside stream smoke. The American Academy ofPaediatrics estimates that 9 million to 12 millionAmerican children under the age of 5 may beexposed to passive smoke. The newer studiesstrengthened earlier conclusions that passivesmoke increases the risk of serious early childhoodrespiratory illness, particularly bronchitis andpneumonia in infancy. Increased coughing wasreported from birth to the mid-teenage years among13 newer studies of passive smoking andrespiratory symptoms. It has also been found thatpassive smoke can lead to middle ear infectionsand other conditions in children. Asthmaticchildren are particularly at risk and the lungproblems in childhood can extend to adulthood.

17. In 1962 and 1964 the Royal College of Physiciansin London and the Surgeon General of the UnitedStates released landmark reports documenting thecausal relation between smoking and lung cancer.Thereafter, extensive research has confirmed thatsmoking affects virtually every organ system. By1990, the Surgeon General of the United Statesconcluded, “smoking represents the mostextensively documented cause of disease everinvestigated in the history of biomedical research.Studies have shown increased risk of lung cancerin non-smoking women whose husbands smoked.Spousal studies on passive smoking showed apositive association between smoking and lungcancer. It has now been shown that involuntarysmoking is a cause of disease including lung cancerin healthy non-smokers. Studies in variouscountries have established a positive associationbetween passive smoking and lung cancer.

The Environmental Protection Agency of U.S.classified environmental tobacco smoke (ETS) asa known human carcinogen to which it attributed3000 lung cancer deaths annually in American non-smokers. The agency also documented causalassociations between exposure to environmentaltobacco smoke (ETS) and lower respiratory tractinfections such as pneumonia and bronchitis,middle ear disease, and exacerbation’s of asthmain children. A report on environmental tobaccosmoke (ETS) published in December 1998 by theCalifornia Environmental Protection Agencyaffirmed the findings of the US EnvironmentalProtection Agency on the link betweenenvironmental tobacco smoke (ETS) and lungcancer and respiratory illness. It also concludedthat passive smoking is a cause of heart diseasemortality, acute and chronic heart disease morbidityretardation of fetal growth, sudden infant deathsyndrome (SIDS), nasal sinus cancer and inductionof asthma in children. Two important studies fromthe Wolfson Institute of Preventive Medicine inLondon, published in 1998 show that marriage toa smoker increased the risk of lung cancer by 26%.Studies have also established strong relationbetween passive smoking and ischaemic heartdisease (IHD), The systematic reviews from theWolfson Institute, the California EnvironmentalProtection Agency and the US EnvironmentalProtection Agency and the various reports releasedmake it clear that exposure to environmentaltobacco smoke (ETS) is a cause of lung cancer,heart disease and other serious illness. In theUnited States, alone it is responsible each year for

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3000 deaths from lung cancer, 35.000 to 62,000deaths from ischaemic heart disease (IHD),150,000 to 300,000 cases of bronchitis orpneumonia in infants and children aged 18 monthsand younger causing 136 to 212 deaths, 8000 to26,000 new cases of asthma, exacerbation ofasthma in 400,000 to 1 million children, 700,000to 1.6 million visits to physician offices for middleear infection, 9700 to 18600 cases of low birthweight and 1900 to 2700 sudden infant deaths.These figures make passive smoking one of theleading preventable causes of premature death inthe United States.

18. Public health action by policy makers to eliminateexposure to environmental tobacco smoke (ETS)is long overdue. A total ban on smoking is preferredon various grounds. Policy makers should pursueall strategies that would help accomplish that goal,including education, legislation, Regulation,litigation and enforcement of existing laws.

19. Government of India is a party to 16 or soresolutions adopted by the World HealthOrganization since the 1970s, particularly the oneadopted in 1986, which urged member-countriesto formulate a comprehensive national tobaccocontrol strategy. It was envisaged that the strategywould contain measures:

i) to ensure effective protection to non-smokers from involuntary exposure totobacco smoke;

ii) to promote abstention from the use oftobacco to protect children and youngpeople from becoming addicted;

iii) to ensure that a good example is set on allhealth-related premises by all healthpersonnel;

iv) to progressively eliminate all incentiveswhich maintain and promote the use oftobacco;

v) to prescribe statutory health warnings oncigarette packets and the containers of alltypes of tobacco products;

vi) to establish programmes of education andpublic information on tobacco and healthissues with the active involvement of healthprofessionals and media;

vii) to monitor trends in smoking and otherforms of tobacco use, tobacco-relateddiseases and effectiveness of nationalsmoking control action;

viii) to promote viable economic ‘alternativesto tobacco production trade and taxation;and

ix) to establish a national focal point tostimulate, support and coordinate all theseactivities.

Despite the fact that India is a signatory to theseresolutions, it is saddening to note that nosignificant follow-up action has been taken exceptbanning smoking in public places and publictransport and printing a statutory warning oncigarette packets. Even here, the action has beenhalf-hearted with the ban on smoking in publicplaces confined to Delhi and a few other citiesand the statutory warning being followed more asa ritual and printed in such small letters that theconsumer hardly notices it. Advertisement in thegovernment controlled mass media has beenprohibited, but it continues unabated in the printmedia and private television channels. TheGovernment’s lip-service is reflected in theabsence of any mention about the hazards oftobacco in the Health Ministry’s Annual Report.Except on the occasion of the “World No TobaccoDay” once a year, there has been no sustainedcampaign to counter the promotional campaign oftobacco and highlight the toll tobacco use takes.

20. Every year, 1 million tobacco-related deaths takeplace in India. An estimated 65 per cent of menuse tobacco, and in some parts, a large proportionof women chew tobacco and bidies. About 33 percent of all cancers are caused by tobacco, About50 per cent of all cancers among men and 25 percent among women are tobacco related. Thenumber of cases of avoidable tobacco-relatedcancers of the upper alimentary and respiratorytracts, coronary heart disease and chronicobstructive pulmonary disease (COPD) has beenestimated at 2,000,000 every year. Many still-births,low birth infants and pre-natal mortality have beenreported among female chewers.

21. Tobacco kills 50 per cent of its regular users within40 years. Apart from these direct healthimplications of tobacco use, the hazards faced bythose engaged in the plucking and curing oftobacco leaves have been highlighted byresearchers of the Ahmedabad-based NationalInstitute of Occupational Health. The hands of theworkers get affected by the chemicals in tobaccoand sickness is caused when nicotine gets absorbedinto the body through the skin. The symptoms arehead-ache, nausea and vomiting. All these well-documented findings are available with the Statebut if it has not taken any effective action, it can

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only be attributed to the clout which the leathalleaf enjoys in the corridors of power. One of thepet contentions of the protagonists of tobacco isthat it makes a significant contribution to theexchequer by way of taxes and hence should notbe disturbed. Also a large number of tobaccofarmers will be hit if consumption is curbed. Boththese have been countered by WHO forcefully.Several studies have brought out that the cost ofhealth care of those affected by tobacco-relatedailments, which is met from the Governmentexchequer is much more than what theGovernment garners by way of taxes. Thus, thereis a net drain on the government resources. Illnessor the premature death of the tobacco-users wouldcast a heavy economic burden on their familiesperpetuating the Cycle of poverty. As regards thepossible impact of any curb on tobacco use ontobacco farmers, studies by the Rajahmundry-basedTobacco Research Institute of the ICAR havebrought out equally remunerative altematives totobacco cultivation, besides use of tobacco forpurposes other than smoking and chewing.

22. Taking note of the alarming scenario as discussedabove, the question then is, what is the relief, whichthis Court can grant to the petitioners? Can thiscourt direct the legislature to enact a law banningtobacco smoking? In our considered opinion theanswer can only be an emphatic ‘no.’ It is entirelyfor the executive branch of the Government todecide whether or not to introduce any particularlegislation. The Court certainly cannot mandatethe executive or any member of the legislature toinitiate legislation, howsoever necessary ordesirable the Court may consider it to be... . If theexecutive is not carrying out any duty laid upon itby the Constitution or the law, the Court. cancertainly require the executive to carry out suchduty and this is precisely what the Court does whenit entertains Public Interest Litigation. But at thesame time, the Court cannot usurp the functionsassigned to the executive and the legislature underthe Constitution and it cannot even indirectlyrequire the executive to introduce a particularlegislation or the legislature to pass it or assumeto itself a supervisory role over the law makingactivities of the executive and the legislature.

Thus, from the above observation of the SupremeCourt, it is clear even the Supreme Court foundthat Himachal Pradesh High Court had exceededthe limits of judicial power in ordering relief inPublic Interest Litigation. But then, it has to beborne in mind that this Court acting as the sentinel

on the qui vive can certainly interfere and grantrelief by way of mandamus to the Government andits officials including police to enforce the existinglaws which is quite sufficient to safeguard theinterests of the public against the wisp ofenvironmental tobacco smoke (ETS). When lawsare there to deal with nuisance, the law has to beenforced by the law-enforcing agency of the State.The question of discretion of tile police in thematter of prosecution of offenders was consideredby Lord Denning, saying: “For instance, it is forthe Commissioner of Police of the metropolis, orthe chief constable as the case may be, to decidein any particular case whether inquiries should bepursued or whether an arrest should be made, or aprosecution brought. It must be for him to decideon tile disposition of his force and tileconcentration of his resources on any particularcrime or area. No court can or should give himdirection on such a matter. He can also make policydecisions and give effect to them, as, for instancewas often done when prosecutions were notbrought for attempted suicide, but there are somepolicy decisions with which, I think, the courts ina case can, if necessary, interfere. Suppose a chiefconstable were to issue a directive to his men thatno person should be prosecuted for stealing anygoods less than 100 pounds in value, I should havethought that the court could countermand it. Hewould be failing in his duty to enforce the law." The discretion possessed by the police in enforcingthe law was considered by the Court of Appeal ina case in which the applicant complained merelyas a citizen, that the police had adopted a policyof not prosecuting London gaming clubs for illegalforms of gaming. The Commissioner’ssubstantially bore out the complaint being basedon the uncertainty of tile law and the expense andmanpower required for keeping the clubs underobservation. But while the case was pending, thelaw was clarified. Fresh instructions were issuedand the Commissioner undertook to withdraw theformer instructions. The court therefore found nooccasion to intervene. But they made it clear thatthe Commissioner was not an entirely free agentas his counsel contended. He had a legal duty tothe public to enforce the law and the court couldintervene by mandamus if, for example, he madeit a rule not to prosecute housebreakers. On theother hand, the court would not question hisdiscretion when reasonably exercised e.g. in notprosecuting offenders who for some special reasonwere not blameworthy in the way contemplatedby the Act creating the offence, the court criticizedthe police policy of suspending observation of

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gaming clubs as being clearly contrary toParliament’s intentions: and had it not beenchanged, they would have been disposed tointervene.

In 1972 the same public-spirited citizen broughtsimilar proceedings asking the court to order thepublic to take more effective action to enforce thelaw against the publication and sale ofpornography. The Metropolitan Police were giveninstructions not to institute prosecutions or applyfor destruction orders without the approval of theDirector of PUBLIC Prosecutions, and it wasshown that much pornographic literature wasflagrantly offered for sale without interference bythe police. The Court of Appeal found that theefforts of the police had been largely ineffective,but that the real cause of the trouble was thefeebleness of the Obscene Publications Act, 1959.Accordingly, it could not be said that the policewere failing in their duty and an order ofmandamus was refused. It was again made clearthat if the police were carrying out their duty toenforce the law, the court would not interfere withtheir discretion, but that the court would do so inthe extreme case where it was shown that they wereneglecting their duty. Exactly, that is the factualsituation here.

23. The existing law on the subject is embodied inSections 268 and 278 IPC. Rule 227(I)(d) and227(5) 22(a) of the Kerala Motor Vehicles Rules1989 besides the relevant provisions of Cr.PC.Section 268 IPC defines public nuisance.

Section 268:

“Public nuisance — A person is guilty of apublic nuisance who does any act or is guiltyof an illegal omission which causes anycommon injury, danger or annoyance to thepublic or to the people in general who dwell oroccupy property in the vicinity or which mustnecessarily cause injury, obstruction, danger orannoyance to persons who may have occasionto use any public right."

A common nuisance is not excused on the ground thatit causes some convenience or advantage.”

There can be no doubt that smoking in a public placewill vitiate the atmosphere so as to make it noxious tothe health of persons who happened to be there.Therefore, smoking in a public place is an offencepunishable under Section 278 IPC. The punishment

for the offence is fine which may extend to Rs.500/-as prescribed under Section 278 IPC. Section 278:

“Making atmosphere noxious to health—Whoever voluntarily vitiates the atmospheresin any place so as to make it noxious to thehealth of persons in general dwelling orcarrying on business in the neighborhood orpassing along a public way shall be punishedwith fine which may end to five hundredrupees.”

In schedule 1 of Cr.P.C. offence under Section 278IPC is a non-cognizable offence. Since the offencealleged is non-cognizable, the police has no authorityto arrest the offender without an order from aMagistrate or without a warrant. But, since thecomplaint includes the report of a police officer in anon-cognizable case, the police can file a complaintbefore the Magistrate against the offender for the saidoffence. Since the offence is punishable with fine uptoRs.500/- only, the case comes within the definition ofa ‘petty case’ as per Section 206(2) Cr.PC. However,it is not necessary that the offence complained of iscognizable to enable the police to file a complaint. Areading of Section 153(2) Cr.P.C. shows that the policecan file a complaint to the Magistrate in anoncognizable case. When the complaint is made by apublic servant in discharge of his official duty theMagistrate need not follow the procedure underSections 200 and 202 Cr.PC in which case theMagistrate can straight away issue process to theaccused. That apart, if any person who commits theoffence refuses to give his name and address, a policeofficer can arrest him for the purpose of ascertaininghis address. Since smoking is a public nuisance,invoking Section LB Cr.PC. Section 133 Cr.PC canmore effectively abate it.

“Conditional order for removal of nuisance —(I)Whenever a District Magistrate or a Sub-divisionalMagistrate or any other Executive Magistrate speciallyempowered in this behalf by the State Government onreceiving the report of a police officer or otherinformation and on taking such evidence (if any) as hethinks fit considers

a) that any unlawful obstruction or nuisance shouldbe removed from any public place or from anyway, river or channel which is or may be lawfullyused by the public; or

b) that the conduct of any trade or occupation, or thekeeping of any goods or merchandise is injuriousto the health or physical comfort of the community

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and that in consequence such trade or occupationshould be prohibited or regulated or such goodsor merchandise should be removed or the keepingthereof regulated; or

c) that the construction of any building or the disposalof any substance as is likely to occasionconflagration or explosion should be prevented orstopped; or

d) that any building tent or structure or any tree is insuch a condition that it is likely to fall and therebycause injury to persons living or carrying onbusiness in the neighborhood or passing by, andthat in consequence the removal repair or supportof such building tent or structure or the removalor support of such tree is necessary or

e) that any tank well or excavation adjacent to anysuch way or public place should be fenced in suchmanner as to prevent danger arising to the public;or

f) that any dangerous animal should be destroyedconfined or otherwise disposed of such;

Magistrates may make a conditional order requiringthe person causing such obstruction or nuisance orcarrying on such trade or occupation or keeping anysuch goods or merchandise or owning, possessing orcontrolling such building, tent, structure, substance tank,well or excavation or owning or possessing such animalor tree, within a time to be fixed in the order –

i) to remove such obstruction or nuisance; or

ii) to desist from carrying on, or to remove or regulatein such manner as may be directed such trade oroccupation, or to remove such goods ormerchandise, or to regulate the keeping thereof insuch manner as may be directed; or

iii)to prevent or stop the construction of such building,or to alter the disposal of such substance: or toremove, repair or support such building tent orstructure, or to remove or support such trees; or

iv) to fence such tank well or excavation; or

v) to destroy confine or dispose of such dangerousanimal in the manner provided in the said over: or,if he objects so to do to appear before himself orsome -

I. No order duly made by a Magistrate under thissection shall be called in question in any Civil Court.Explanation,—A “public place” includes also propertybelonging to the State, camping grounds and groundsleft unoccupied for sanitary or re-creative purposes.”

If such an order is passed by the Executive Magistrate,any person who disobeys the order is guilty of theoffence punishable under section 188 IPC. Section 188:

“Disobedience to order duly promulgated bypublic servant- Whoever, knowing that by anorder promulgated by a public servant lawfullyempowered to promulgate such order, he isdirected to abstain from a certain act, or to takecertain order with certain property in hispossession or under his management, disobeyssuch direction, shall, if such disobediencecauses or tends to cause obstruction annoyanceor injury or risk of obstruction, annoyance orinjury to any persons lawfully employed bepunished with simple imprisonment for a termwhich may extend to one month or with finewhich may extend to two hundred rupees, orwith both; and if such disobedience causes ortends to cause danger to human life, health orsafety or causes or tends to cause a riot or affray,shall be punished with imprisonment of eitherdescription for a term which may extend to sixmonths or with fine which may extend to onethousand rupees or with both."

Explanation: It is not necessary that the offendershould intend to produce harm or contemplate hisdisobedience as likely to produce harm. It is sufficientthat he knows of the order which he disobeys, and thathis disobedience produces or is likely to produceharm.”

Offence under Section 188 IPC is cognizable as perfirst schedule of Cr.PC. Therefore, after thepromulgation of an order under Section 133(a) Cr.PC,if any person is found smoking in a public place thepolice can arrest him without a warrant. They onlycondition is that the order is duly promulgated by theExecutive Magistrates, The Executive Magistrateshave a duty to promulgate such an order.

24.In Ratlam Municipality vs. Vardhicahand KrishnaIyer, Speaking for the Bench ruled that theimperative tone of Section 133 Cr.P.C. read withthe punitive temper of Section 188 IPC make theprohibitory act a mandatory duty. If a complaint is

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filed under Section 188 IPC, there is an embargofor the Magistrate to take cognizance under Section195(1) Cr.PC as cognizance can be taken for theoffence on the complaint in writing of the publicservant concerned or of some other public servantto whom he is administratively subordinate. Thisembargo will disappear if there is a complaint inwriting by the public servant concerned. When thereexists a public nuisance, this Court could requirethe executive under Section 133 Cr.PC to abate thenuisance by taking affirmative action on atimebound basis. Otherwise, it will pave the wayfor a profligate statutory body or pachydermicgovernmental agency to defy the law by willfulinaction. Section 133 Cr.PC is categoric althoughreads discretionary. Judicial discretion when factsfor its exercise are present has a mandatory import.

Therefore, when the Magistrate has before himall the information and evidence which disclosesthe existence of a public nuisance and on thematerials placed, he considers that suchnuisance should be removed from any publicplace which may be lawfully used by the public,He shall act. Thus, his judicial power shall passthrough the procedural barrel fire upon theobstruction or nuisance triggered by thejurisdictional facts, The responsibility of theMagistrate under Section 133 Cr.PC. is to orderremoval of such nuisance within a time to be fixedin the order.

This is a public duty implicit in the public powerto be exercised on behalf of the public and pursuantto a public proceeding. Failure to comply with thedirection will be visited with a punishmentcontemplated by section 188 IPC. The new socialjustice orientation imparted by the Constitution ofIndia makes Section 133 Cr.P.C. a remedial weaponof versatile use, Social justice is due to the peopleand, therefore, the people must be able to triggeroff the jurisdiction vested for their benefit in anypublic functional like a Magistrate under Section133 Cr.P.C. In the exercise of such power thejudicial must be informed by the broader principleof access to justice necessitated bv the conditionsof developing countries and obligated by themandate contained in Article 21. Article 38 andArticle 51(a) of the Constitution of India, Article21 of the Constitution of India provides that noperson shall be deprived of his life or personalliberty except according to procedure establishedby law.

The word ‘life’ in this Article is very significant asit covers every facet of human existence. The word‘life’ has not been defined in the Constitution butit does not mean nor can it be restricted only to thevegetative or animal life or mere existence fromconception to death. Life does not merely mean acontinued drugery through life. The expression‘life’ has a much wider meaning bringing withinits sweep some of the finer graces of humancivilization, which makes life worth living. Lifeincludes all such amenities and facilities, which aperson born in a free country is entitled to enjoywith dignity legally and constitutionally. Theamplitude of the word ‘life’ is so wide that thedanger and encroachment complained of wouldimpinge upon the fundamental rights of citizens asin the present case. The apex court has interpretedArticle 21 giving wide meaning to ‘life’ whichincludes the quality of life, adequate nutrition,clothing and shelter and cannot be restricted merelyto physical existence. The word ‘life’ in theConstitution has not been used in a limited manner.A wide meaning should be given to the expression‘life’ to enable a man not only to sustain life butalso to enjoy it in a full measure. The sweep ofright to life conferred by Article 21 of theConstitution is wide and far-reaching so as to bringwithin its scope the right to pollution free air andthe “right to decent environment.” Under ourConstitutional set up the dignity of man and subjectto law the privacy of hom shall be inviolable. TheConstitution through various Articles in Part III andPart IV guarantees the dignity of the individual andalso right to life which, if permitted to be trample uponwill result in negation of these rights and dignityof human personality.

25.For the purpose of the present controversy, sufficeit to say, that a person is entitled to protection oflaw from being exposed to hazards of passivesmoking. Under common law, a person whoseright of easement, property or health is adverselyaffected by any act or omission of a third person inthe neighborhood or at a far off place is entitled toseek an injunction and also claim damages, but theconstitutional rights stand at a higher pedestal thanthe legal rights conferred by law, be it the municipallaw or the common law. Such a danger as depictedin the earlier paragraphs of this judgment is boundto affect many people who may suffer from itunknowingly because of lack of awareness,information and education and also because suchsufferance is silent and fatal and most of the people

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who are exposed to the lethal smoke do not knowthat they are in fact facing any risk or are likely tosuffer by such risk. Because of lapses on the partof the authorities concerned in creating awarenessof the dangers of passive smoking, innocent peopleare unwittingly made to inhale noxiousenvironmental tobacco smoke (ETS) andconsequently become victims of various deadlydiseases. It is therefore time the authoritiesshould wake up before the matter slips out of theirhands since health of large number of people is atstake. Maintenance of health and environment fallswithin the purview of Article 21 of the Constitutionas it adversely affects the life of the citizens byslow and insidious poisoning thereby reducing thevery life span itself. Exposing unsuspectingindividuals to environmental tobacco smoke (ETS)with ominous consequences amounts to taking away their life, not by execution of death sentencebut by a slow and gradual process by robbing himof all his qualities and graces, a process which ismuch more cruel than sending a man to gallows.Converting human existence into animal existenceno doubt amounts to taking away human life,because a man lives not by his physical existenceor by bread alone but by his human existence.Smokers dig not only their own gravesprematurely but also pose a serious threat to thelives of lakhs of innocent nonsmokers who getthemselves exposed to ETS thereby violating theirright to life guaranteed under Article 21 of theConstitution of India. A healthy body is the veryfoundation for all human activities. In a welfareState it is the obligation of the State to ensure thecreation and the sustaining of conditionscongenial to good health.

In the result, we declare and hold as follows:

a) Public smoking of tobacco in any formwhether in the form of cigarettes, cigars,beedies or otherwise is illegal,unconstitutional and violative of Article21 of the Constitution of India. We directthe District Collectors of all the Districtsof the State of Kerala who are suo-motoimpleaded as Additional respondents 39to 52 to promulgate an order under Section133(a) Cr.P.C.prohibiting public smokingwithin one month from today and directthe 3rd respondent Director General ofPublic, Thiruvananthapuram, to issueinstructions to his subordinates to takeappropriate and immediate measures to

prosecute all persons found smoking inpublic places treating the said act assatisfying the definition of “publicnuisance” as defined under Section 268IPC in the manner indicated in thisJudgement by filing a complaint beforethe competent Magistrate and direct allother respondents to take appropriateaction by way of display of ‘SmokingProhibited’ boards etc, in their respectiveoffices or campuses.

b) There will be a further direction to Addl.Respondents 39 to 52 to issue appropriatedirections to the respective RT.Os tostrictly enforce the provisions containedin Rule 227(l)(d) and 227(5) of the KeralaMotor Vehicles Rules, 1989.

c) Tobacco smoking in public places fallswithin the mischief of the penalprovisions relating to “public nuisance”as contained in the Indian Penal Code andalso the definition of air pollution ascontained in the statutes dealing with theprotection and preservation of theenvironment, in particular the Air(Prevention and Control of Pollution) Act,1981.

d) The respondents, repositories of widestatutory powers and enjoined by thestatute and Rules to enforce the penalprovisions therein are duty bound torequire that the invidious practice ofsmoking in public places, a positivenuisance, is discouraged and offendersvisited with prosecution and penalty asmandated by law. Accordingly, therespondents are liable to be compelled bypositive directions from this Court to actand take measures to abate the nuisanceof public smoking in accordance with law.Directions in the above lines are herebyissued.

e) The continued omission and inaction onthe part of the respondents to complywith the constitutional mandate to protectlife and to recognize the inviolability ofdignity of man and their refusal tocountenance the baneful consequences ofsmoking on the public at large has resultedin extreme hardship and injury to thecitizens and amounts to a negation of theirconstitutional guarantee of decent livingas provided under Art.21 of theConstitution of India.

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26 (a) Media, print and electronic will take note ofthis judgment and caution the public about penalconsequences of violation of the ban on publicsmoking.

27. The petitioners are free to move this Court forfurther directions as and when deemed necessary.

The Original Petition is allowed as above.

Signed:

A. R. LAKSHANAN. AG. C. J.K. NARAYANA KURUP. JUDGE.12th July, 1999

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SHEHLA ZIA & OTHERS

VERSUS

WATER AND POWER DEVELOPMENT AUTHORITY(WAPDA)

Pakistan Supreme Court, Human Rights Case No. 15-K of 1992 (PLD 1994, SC. 693)

• Precautionary Principle;• Electromagnetic Radiation;• Sustainable development;• Environmental Pollution;• Installation of grid station/cutting of trees.

Facts

This was an action commenced by a letter to theChairman, Supreme Court. The residents of a certainstreet in Islamabad complained that a High TensionElectric Grid Station located in their residential areaproduced harmful effects to residents due to theElectro-magnetic field coming from the high voltagetransmission lines.

Water and power Development Authority (WAPDA) contended that there was no exposure to any dangerand harmful effects. Court took into considerationPrinciple 15 of the Rio Declaration on Environment.

Held

Saleem Akhtar J.

1. In order to protect the environment theprecautionary approach shall be widely applied.

2. Where there is a state of uncertainty in such asituation the authorities should observe the ruleof prudence and precaution.

3. Court observed that one should not scrap the entirescheme but could make such adjustments,alternatives or additions, which may ensure safetyor at least minimize possible hazards.

4. The court ordered that a Commission NSPACKcomprised of renowned experts in the field shouldbe constituted to study the subject area anddetermine the level of hazard as well as ways ofminimizing possible hazards.

5. The court required WAPDA to ensure that therewas adequate public participation, public hearingsand notices.

PRESENT: NASIM HASAN SHAH,C.J.,

SALEEM AKHTAR AND MANZOOR HUSSAINSIAL, JJ

Constitution of Pakistan (1973)

Arts. 184(3), 9 & 14- Public interest litigation- Humanrights- Apprehension of citizens of the area againstconstruction of grid station by authority- SupremeCourt, on receipt of letter from citizens in that respect,found that the letter raised two questions namely;whether any government agency had a right toendanger the life of citizens by its actions without thelatter’s consent and whether zoning laws vest rights incitizens which would not be withdrawn or alteredwithout the citizens’ consent- Citizens, under Art.9 ofthe Constitution of Pakistan were entitled to protectionof law from being exposed to hazards of electromagnetic field or any other such hazards which maybe due to installation and construction of any gridstation, any factory, power station or such likeinstallations. Art.184 of the Constitution , therefore,could be invoked because a large number of citizensthroughout the country could not make suchrepresentation and may not like to make it due toignorance, poverty and disability. Considering thegravity of the matter which could not involve and affectthe life and health of the citizens at large, notice wasissued by Supreme Court to the Authority – Trend ofopinion of scientists and scholars was that likelihoodof adverse effects of electro magnetic fields to human

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health could not be ruled out. Subject being highlytechnical, Supreme Court declined to give definitefinding particularly when the experts and technicalevidence produced was inconclusive. Supreme Courtobserved that under such circumstances, the balanceshould be struck between the rights of the citizens andalso the plans which were executed by authority forthe welfare, economic progress and prosperity of thecountry and if there were threat of serious damage,effective measures should be taken to control it and itshould not be postponed merely on the ground thatthe scientific research were uncertain and notconclusive. With the consent of both parties Courtappointed Commission to examine the plan and theproposals/ schemes of the authority in the light ofcomplaint made by the citizens and submit its reportand if necessary to suggest any alteration or additionwhich may be economically possible for constructionand location of the grid station. Supreme Court furtherdirected that government should establish an authorityor commission manned by internationally known andrecognised scientists having no bias and prejudice, tobe members of the commission whose opinion orpermission should be obtained before any new gridstation was allowed to be constructed. Authority,therefore, was directed by the Supreme Court that infuture, it would issue public notice in newspapers, radioand television inviting objections, if any, by affordingpublic hearing to persons filing the objections. Suchprocedure was directed to be adopted and continuedtill such time that the government constituted anyCommission or Authority as directed by the court.

In the present case, the citizens having apprehensionagainst construction of grid station in residential areasent a letter to the Supreme Court for consideration asa human rights case raising two questions; namely,whether any government agency has a right to endangerthe life of citizens by its actions without the latter’sconsent; and secondly, whether zoning laws vest rightsin citizens which cannot be withdrawn or alteredwithout the citizens’ consent. Considering the gravityof the matter, which may involve and affect the lifeand health of the citizens at large, notice was issued tothe authority.

So far, no definite conclusions have been drawn by thescientists and scholars, but the trend is in support ofthe fact that there may be likelihood of adverse effectsof electromagnetic fields on human health. It is forthis reason that in all the developed countries, specialcare is being taken to establish organizations forcarrying on further research on the subject. The studiesare therefore not certain but internationally there seemsto be a consensus that the lurking danger, which in an

indefinite manner has been found in individualincidents and studies, cannot be ignored.

In the present-day controversies where every day newavenues are opened, researches are made and newprogress is being reported in the electrical fields, itwould be advisable for Authority to employ betterresources and personnel engaged in research and studyto keep themselves up to-date in scientific and technicalknowledge and adopt all such measures which arenecessary for safety from adverse effects of magneticand electrical fields.

There is a state of uncertainty and in such a situationthe authorities should observe the rules of prudenceand precaution. The rule of prudence is to adopt suchmeasure which may avert the so-called danger, if itoccurs. The rule of precautionary policy is to firstconsider the welfare and safety of the human beingsand the environment and then to pick up a policy andexecute the plan which is more suited to obviate thepossible danger or make sure such alternateprecautionary measures which may ensure safety. Tostick to a particular plan on the basis of old studies orinclusive research cannot be said to be a policy ofprudence or precaution.

It is a highly technical subject upon which the Courtdeclined to give a definite finding particularly whenthe experts and the technical evidence produced isinconclusive. In these circumstances, the balanceshould be struck between the rights of the citizens andalso the plan which are executed by the powerauthorities for welfare, economic progress andprosperity of the country.

If there are threats of serious danger, effective measuresshould be taken to control it and it should not bepostponed merely on the ground that scientific researchand studies are uncertain and not conclusive.Prevention is better than cure. Pakistan is a developingcountry. It cannot afford the researches and studiesmade in developed countries on specific problems.However, the researches and their conclusions withreference to specific cases are available, theinformation and knowledge is at hand and Pakistanshould take benefit of it.

It is reasonable to take preventive and precautionarymeasures straightaway instead of maintaining the statusquo because there is no conclusive finding on the effectof electro-magnetic fields on human life. One shouldnot wait for conclusive findings as it may take ages tofind out and, therefore, measures should be taken toavert any possible danger and for that reason one

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should not go to scrap the entire scheme but couldmake such adjustments, alterations or additions whichmay ensure safety and security or at least minimizethe possible hazards.

The issue raised involves the welfare and safety of thecitizens at large because the network of high-tensionwires is spread throughout the country. One cannotignore that energy is essential for present-day life,industry, commerce and day to day affairs. The moreenergy is produced and distributed, the more progressand economic development becomes possible.Therefore, a method should be devised to strike balancebetween economic progress and prosperity and tominimize possible hazards. In fact, a policy ofsustainable development should be adopted. It will thusrequire a deep study into the planning and the methodsadopted by the Authority for the construction of thegrid station. Certain modes can be adopted by whichhigh tension frequency can be decreased. This is apurely scientific approach, which has to be dealt withand decided by the technical and scientific personsinvolved in it. It is for this reason that both the partieshave agreed that NESPAK should be appointed as aCommissioner to examine the plan and the proposals/schemes of Authority in the light of the complaint madeby the citizens and submit its report and if necessary,to suggest any alteration or addition which may beeconomically possible for constructing a grid station.The location should also be examined and reportsubmitted at the earliest possible time.

In all developed countries great importance isgiven to energy production. Pakistan’s need is greateras it is bound to affect the economic development, butin the quest of economic development, one has to adoptsuch measures, which may not create hazards to life,destroy the environment and pollute the atmosphere.

While making such a plan, no public hearing is givento the citizens nor any opportunity is afforded to theresidents who are likely to be affected by the high-tension wires running near their locality. It is only aone-sided affair with the Authority which prepares andexecutes the plan. Although the Authority and thegovernment may have been keeping in mind the likelydangers to the citizens’ health and property, no dueimportance is given to seeking opinion from theresidents of the locality where the grid station isconstructed or from where the high tension wires run.It would therefore, be proper for the government toestablish an Authority or commission manned byinternationally known and recognized scientists havingno bias and prejudice to the members of suchcommission whose opinion or permission should be

obtained before any new grid station is allowed to beconstructed. Such s commission should also examinethe existing grid stations and the distribution lines fromthe point of view of health hazards and environmentalpollution. If such a step is taken by the government intime, much of the problem in future can be avoided.

Art.9 of the Constitution provides that no person shallbe deprived of life or liberty save in accordance withlaw. The word “life” is very significant as it covers allfacts of human existence. The word “life “ has notbeen defined in the Constitution but it does not meanor can be restricted only to the vegetative or animallife or mere existence from conception to death. Lifeincludes all such amenities and facilities which aperson born in a free country is entitled to enjoy withdignity, legally and constitutionally. A person is entitledto protection of the law from being exposed fromhazards of electromagnetic fields or any other suchhazards which may be due to construction of any gridstation, any factory, power station or such likeinstallations.

Under common law a person whose right of easement,property or health is adversely affected by any act, omission or commission of a third person in theneighborhood or at a far-off place, is entitled to seekan injunction and also claim damages but theconstitutional rights are higher than the legal rightsconferred by law be it municipal law, or commonlaw. Such a danger as depicted, the possibility of whichcan not be excluded, is bound to affect a large numberof people who may suffer from it unknowingly becausesuch sufferance is silent and fatal and most of thepeople who would be residing near, under or at adangerous distance of the grid station or suchinstallation do not know that they are facing any riskor are likely to suffer by such risk. Therefore, Art.184can be invoked because a large number of citizensthroughout the country can not make suchrepresentation and may not like to make it due toignorance, poverty and disability. Only someconscientious citizens aware of their rights and thepossibility of danger come forward.

The word ”life” in terms of Art 9 of the Constitution isso wide that the danger and encroachment complainedof would impinge on the fundamental rights of acitizen. In this view of the matter, the petition underArt 184(3) of the Constitution, 1973 is maintainable.

The word “life” in the constitution has not been usedin a limited manner. A wide meaning should be givento enable a man not only to sustain life but enjoy it.

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Art.14 provides that the dignity of man and subject tolaw the privacy of home shall be inviolable. Thefundamental right to preserve and protect the dignityfor man under aart.14 is unparalleled and could befound only in few constitutions of the world.

Where life of citizens is degraded, the quality of life isadversely affected and health hazards are createdaffecting a large number of people. The court inexercise of this jurisdiction under Art.184 (3) of theconstitution may grant relief to the extent of stoppingthe functioning of units which create pollution andenvironmental degradation.

In these circumstances, before passing any final order,with the consent of both the parties a Court appointedCommissioner is to examine and study the scheme,planning device and technique employed by theAuthority and report whether there was any likelihoodof any hazard or adverse effect on health of theresidents of the locality. The Commissioner might alsosuggest variation in the plan minimizing the allegeddanger. Authority was to submit all plans, schemes andrelevant information to the Commissioner. The citizenswill be at liberty to send to the Commissioner necessarydocuments and material as they desire. Thesedocuments were to reach Commissioners within twoweeks. Commissioner was authorized to call for suchdocuments of information from the Authority and thecitizens which in its opinion was necessary to completethis report. The report should be submitted within fourweeks from receipt of the order after which furtherproceedings were to be taken. Authority was furtherdirected that in future prior to installing or constructingany grid station and/or transmission line, it would issuepublic notice in newspapers, radio and televisioninviting objections and to finalize the plan afterconsidering the objections, if any, by affording publichearing to the persons filing objections. This procedureshall be adopted and continued by Authority till suchtime as the Government constitutes any Commissionor Authority as suggested.

International Agreement

Value- International agreement between thenations if signed by any country is always subject toratification, but same can be enforced as a law onlywhen legislation is made by the country through itsLegislature. Without framing a law in terms of theinternational agreement, the covenants of suchagreement cannot be implemented as a law, nor dothey bind down any party. Such agreement,however, has a persuasive value and commandsrespect.

Constitution of Pakistan (1973)

Art. 9. Word “life” in Art. 9 of the constitution coversall facets of human existence.

Article 9 of the Constitution provides that no personshall be deprived of life or liberty save in accordancewith the law. The word “life” has not been defined inthe Constitution but it does not mean, nor can it berestricted only to the vegetative or animal life or mereexistence from conception to death. Life includes allsuch amenities and facilities which a person born in afree country is entitled to enjoy with dignity legallyand constitutionally.

The word “life” in the Constitution has not been usedin a limited manner. A wide meaning should be givento enable a man not only to sustain life, but to enjoy it.

Constitution of Pakistan (1973)

Art. 14 - Fundamental right to preserve andprotect the dignity of man under Art. 14 is unparalleledand could be found only in a few Constitutions of theWorld.

Article 14 provides that the dignity of man and subjectto law the privacy of home shall be inviolable. Thefundamental right to preserve and protect the dignityof man under Art. 14 is unparalleled and could be foundonly in few Constitutions of the World.

Constitution of Pakistan (1973)

Art. 184(3) - Public interest litigation - Pollutionand environmental degradation - Where life ofcitizens is degraded, the quality of life is adverselyaffected and health hazards are created affecting a largenumber of people. Supreme Court in exercise of itsjurisdiction under art. 184(3) of the Constitution ofPakistan may grant relief to the extent of stopping thefunctioning of such units which create pollution andenvironmental degradation.

Dr. Parvez Hasan for the Petitioners

Tarik Malik, Project Director, WAPDA forRespondents.

Date of hearing: 12 February, 1994

ORDER

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SALEEM AKHTAR, J. – Four residents of Street No.35, F-6/1, F-6/1, Islamabad, wrote to the Chairman on 15- 1-1992 conveying thecomplaint and apprehensions of the residents in thearea in respect of construction of a grid stationallegedly located in the green-bet of a residentiallocality. They pointed out that the electro-magneticfield by the presence of the high voltage transmissionlines at the grid station would pose a serious healthhazard to the residents of the area, particularly thechildren, the infirm and the Dhobi-ghat families thatlive in the immediate vicinity. The presence ofelectrical installations and transmission lines wouldalso be highly dangerous to the citizens particularlythe children who play outside the area. It would damagethe green-belt and affect the environment. It was alsoalleged that it violates the principles of planning inIslamabad where the green-belt are considered anessential component of the city for environmental andaesthetic reasons.

They also referred to the various attempts made bythem from July 1991 protesting about the constructionof the grid station, but no satisfactory step had beentaken. This letter was sent to this Court by Dr. TariqBanuri of LUCN for consideration as a Human Rightscase raising two questions; namely, whether anyGovernment agency has a right to endanger the life ofcitizens by its actions without the latter’s consent; andsecondly, whether zoning laws vest rights in citizenswhich cannot be withdrawn or altered without thecitizen’s consent.

Considering the gravity of the matter which mayinvolve and affect the life and health of the citizens atlarge, notice was issued to the respondents whoappeared and explained that the site of the grid stationwas not designated as open space/green area as statedin the layout plan of the area. It was further stated thatthe site had been earmarked in an incidental spacewhich was previously left unutilized along the bankof Nallah and was not designated as open space orgreen area. It was about 6-10 feet in depression formthe houses located in the vicinity of the grid stationsite. The grid station site starts at least40 feet awayfrom the residents in the area and construction of thegrid station does not obstruct the view of the residents.It was further stated that the fear of health hazard dueto vicinity of high voltage of 132 KV. transmission

lines and grid station is totallyunfounded. Similar 132KV grid stations have beenestablished in the densely area of Rawalpindi, Lahore,Multan and Faisalabad, but no such health hazard hasbeen reported. It was also claimed that not a single

complaint has been received even from the peopleworking in these grid stations and living right in thepremises of the grid stations. The installations aremade in such a way that the safety of personnel andproperty is ensured. It was further stated thatelectromagnetic effects of extra high voltage lines andvegetation is under study in the developed countries,but the reports of results of such studies arecontroversial. In support of the contentions, CDAsubmitted extract from the opinion of Dr. M. MohsinMubarak, Director, Health services, which reads asfollows:

“ the fears of the residents about the effects ofhigh voltage transmission lines are also notconsidered dangerous for the nearby residents.Even a small electric point with 220 voltscurrent or a sui Gas installation in the kitchencan prove to be extremely dangerous if specificprecautions are not undertaken andmaintained. The high-tension wires are notlikely to harm the residents if due protectioncriteria are properly planned and executed. Theconcept of dangerous and offensive trades andcivil defence is not that the candle should notbe lit. A candle must be lit to removedarkness and make the things more productivebut care must also be taken not to let the candleburn everything around.”

The comments of government of Pakistan, Ministryof Water and Power recommending the constructionof the grid station were also filed in which the followingpoints were noted on the effect of electrical light andwiring on health of human beings; -

(c) although the studies of effects of electric lines andwiring on the health of human beings are being carriedout by different agencies/ institutions of the world,there ate no established and conclusive findings aboutany serious effects of electric lines/ wiring on the healthof human beings.

The effects of electricity can be considered on accountof its electric field and the magnetic fieldand in this regard, extracts of section 8.11 and 8.13 ofTransmission Line Reference Book of Electric andMagnetic fields on people and animals are enclosedwhich indicate that there is no restriction onpermissible duration of working if the electric fieldintensity is up to 5KV/m whereas in the case underconsideration the electric field intensity wouldcertainly be lesser than 0 KV/m which value asindicated in the said extract is for a location at adistance of 20 m from a 525 KV line.

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The nearest present live conductor is only 132 KV andthat too would be at a distance of more than 20 m fromthe nearest house’s boundary wall as shown in theenclosed map. This clearly shows that the nearbyhouses fall in a quite safe zone. As regards the magneticfields, the intensity of the magnetic field ground levelclose to transmission line varies from 0.1 to 0.5 gausswhich values are less than those in industrialenvironments especially in proximity to low voltageconductors carrying currents as mentioned in the aboveextracts. In view of the above details, there should beno concern about the health of residents of nearbyhouses.

The apprehension that the grid station would generateand transmit excessive heat to houses is unfounded asthe main equipment i.e. power transformers areproperly cooled by circulation of oil inside transformertanks and by means of cooling fans.

These opinion of the WAPDA and CDA are base onTransmission Lines Reference Book, 345 KV andabove 2nd Edition, extract of which had been filedand relevant parts of which are reproduced as follows:-

1. “ Although health complaints by substation workersin the USSR were reported (40.41), medicalexamination of linemen in the U.S.A (38.39), inSweden (19) and Canada (56.58), failed to findhealth problems ascribable to electric fields. As aresult of unclear findings and research in progress,no rules for electric-field intensity inside andoutside the transmission corridor have beenuniversally established. In some cases, design ruleshave been established to allow construction of EHVtransmission lines to proceed with maximumpossible guaranteed protection of people fromhealth risks.

Many studies of magnetic-field effects onlaboratory items have been performed. A goodgeneral review and discussion is offered bySheppard and Eisenbud (59). Magnetic fields havebeen reported to affect blood composition, growth,behaviour, immune systems and neural functions.However, at present there is a lack of conclusiveevidence, and a very confusing picture results fromthe wide variation in field strengths, frequency,exposure duration used indifferent studies.”

WAPDA also submitted extracts from A.B.B.literature regarding insulation and coordination/standard clearances data based on LECspecifications in which minimum clearance for500KV equipment and installation has been given

1,100 ft. and 1,300 ft. for phase-to- phase aircirculation and phase -to- phase earth clearance.

2. The petitioners were also asked to furnish materialin support of their claim. They have field newsclippings from magazines, research articles, andopinion from scientists to show thatelectromagnetic radiation is the wave produced bymagnetism of an electrical current and thatelectromagnetic fields can affect human beings. Thefirst item is a clipping from the magazine “TheNews International, September 18, 1991, entitled“Technotalk”. It refers to a book ‘Electro-Pollution- How to protect yourself against it’ byRoger Coghill. It has been observed that “ nowresearchers are asking whether it is more thancoincidence that the increase in diseases like cancer,ME, multiple sclerosis, hyperactivity in children,allergies and even AIDS have occurred alongsideenormous growth in the production and use ofelectricity.” It further states that “the first warningsign came from the USA in 1979 when Dr. NancyWeheimer and Dr. Ed Leeper found that childrenliving next to overhead electricity lines were morelikely to develop leukemia. Since then, furtherstudies have shown links with brain tumours,depression and suicide.”

One US researcher found that electrical utilityworkers were 13 times more likely to develop braintumours than the rest of the population. A midlandsdoctor discovered a higher than average rate ofdepression and suicide in people living near electriccables.

Photocopy of an article published in Newsweek,July 10, 1989, entitled ‘An Electromagnetic Storm”has been filed. In this article, the apprehensionsand problems considered by the scientists have beendiscussed and reference has been made to theresearchers in this field in which it was concludedas follows:-

The question is whether we know enough toembark on a complete overhaul of the electronicenvironment. Avoiding electric blankets and sittingat arm’s length from one’s VDT screen (their fieldsfall off sharply after about two feet) seem onlyprudent. But drastic steps to reduce people’sinvoluntary exposures might prove futile. For whileresearch clearly demonstrates that electromagneticfields can affect such process as bone growth,communication among brain cells, even the activityof white blood cells, it also shows that weak fieldssometimes have greater effects than strong ones.

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Only through painstaking study will anyone beginto know where the real danger lies. On one point,at least, Brodeur and many of those citizens seemto agree: "we’re not quite sure what we’re upagainst, we need urgently to find out.”

3. An article published in the magazine ‘Nature’,Volume 349, 14 February 1991 entitled ‘EMF-Cancer Linked Still murky’ refers to a study madeby epidemiologist John Peters from the Universityof Southern California, who released hispreliminary results from a case control study of 232young Leukemia victims. The results implied thatleukemia reasons are co-related to electromagneticfield (EMF) exposures and that they are notdependent on how exposure is estimated.

5. In an article from Electronics world & wirelessworld, February 1990 entitled ‘Killing Fields’, theauthor has discussed and produced a large numberof case studies from which it was observed that atleast there was a two-fold increase in adult leukemialink to fields that if one accepts a casual link topower line electromagnetic fields as much as 10-15% of all childhood cancer cases might beattributed to such fields. There has been a growingconcern and research in the US and seven Americanstates have adopted rights of way, but no such stephas been taken in the UK. The case studiesshowed that: -

“Among recent residential studies, GD Dr.Stephen Perry published correlation betweenthe magnetic field exposure of people livingin multi-storey blocks (or nine storeys ormore). With the incidence of heartdisease and depression. Magneticfield strengths measured in all 43 blocks witha rising cable showed very significantlyhigher readings (p.0.0002) in thoseapartments categorised as ‘near’ the cable,averaging 0.315T (highest; 0.377T) against0.161T (lowest : 0.148T) in the "distantapartments." In line with these measures,significantly more ‘… myocardial infraction,hypertension, isshaemic heart disease anddepression…’ was reported in those livingnear the cable.” Other articles in the samemagazine were entitled “Killing Fields, theepidemiological evidence” and KillingFields, the Politics” in which the suggestionwas made that a moratorium should be placedon all new buildings or routing of power lineswhich causes 50 Hz fields in houses toexceed every cautiously set limit”.

In an information sent by Mark Chernaik,Environmental Law ,US to Brig. (Rtd.) MuhammadYasin, Projects Coordinator, sustainable developmentPolicy Institute (SDPI), it is stated that “when electriccurrent passes through high voltage transmissionlines(HVTLs), it produces electric and magnetic fields.Although both can affect biological systems, thegreatest concern is the health impacts of magneticfields.

A magnetic field can be either static or fluctuating.Magnetic fields from HVTLs fluctuate because theelectric currents within HVTLs are alternating currents(AC) which reverse direction 50 to 60 times per second(50 to 60 Hz). Magnetic fields pass nearly unimpededthrough building materials and earth.” It refers to fourrecent epidemiological studies which show that thepeople exposed to relatively strong static andfluctuating magnetic fields have higher rates ofleukemia as compared to general population. It givesthe figures that the rate of leukemia was higher in over1,700,000 children who lived within 300 metres ofHVTLs in Sweden from 1960-85. Children who wereexposed to fluctuating magnetic fields greater than 0.20Ut were 2.7 more times likely to have contractedleukemia and children who were exposed to greaterthan 0.3Ut were 3.08 times more likely to havecontracted leukemia than other children (Reference:Feychting, M.& Anlbon.A (October 1993) “MagneticFields and Cancer in children Residing in SwedishHigher Voltage Power Lines”. American Journal ofEpidemiology, Bol. 138,p.467).

It also refers to an article “Childhood cancer in Relationto modified Residential wire code EnvironmentalHealth perspectives, Vol.10, p.76-80 in which studieswere carried out in respect of cancer in children livingin Denver area US and it was reported that childrenliving in homes within 20 metres of HVTLs or primarydistribution lines were 1.9 times more likely to havecontracted cancer in general and 2.8 times more likelyto have contracted leukemia in particular than childrenliving in homes with relatively moderate or lowexposure to magnetic fields.

Likewise, reference has been made to the study relatingto leukemia in workers who maintain and repairtelephone lines in US and the rate of cancer inNorwegian electrical workers who were exposed tomagnetic fields. It also states that power companychallenged the existence of link between leukemia andexposure to magnetic fields on the basis that there isno biological explanation for the link between leukemiaand exposure to magnetic fields. It also suggestsmethods to reduce magnetic fields from HVTLs.

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Dr. Tariq Banuri has also made a statement and givenhis opinion as an expert on Environmental Economicsand a student of Social Management. According to him:

a) The earlier consensus on the limited degree of theharmful effects of radiation does not exist. Whileat this point the expert evidence is not conclusiveregarding its impact, the burden of proof has shiftedfrom individuals to the organisation. As a result,courts in the United States have recommended morestringent safety standards.

b) Given the absence of proper safeguards andstandards in Pakistan’s research, it is unlikely thatstudies done in Pakistan would help decide theissue. Perhaps, we would have to rely on the resultsof cross-country studies, or on those studiesconducted in industrial countries. We should notregard the results in other countries as inappropriatefor our purposes. These are the only results we arelikely to be able to use in the foreseeable future.

c) Even in the latter countries, until such time as thematter gets resolved, the profession is likely to placegreater weight on the critical and more recentstudies than would be warranted by their frequencyor number. In other words, a single study showingadditional harmful consequences has more weightthan hundreds of studies that argue that there is nochange.

According to him, precautionary principles should besupported and there should be a balance in existingsituation, development and the environmental hazards.

The petitioners have also relied on an article entitled“Regulatory and Judicial Responses to the possibilityof Biological hazards from Electromagnetic fieldsgenerated by power lines” by Sherry Young, AssistantProfessor of Law, Claude W. Petit, College of LawOhio Northern University, B. A. Michigan StateUniversity, Harvard Law School published inVillanova Law Review, Vol.36, p. 129 in 1991. It is anexhaustive and informative article which deals withthe current state of knowledge about the biologicaleffect of exposure to electromagnetic fields, theresponses of the legal system to the possibility ofbiological hazards, evaluations and the proposals forregulatory response. It refers to various studies madein USA, Sweden and Canada about ELF exposure andcancer in children and adults. After referring to thevarious studies and the results arrived at, the author has summed up as follows:-

“While the implications of these studies justify

additional research, it would be both difficultand futile to base any significant regulation ofelectric transmission and distribution systemson rather limited data currently available. Atbest, various experiments have demonstratedthat particular cells or animals have shownparticular response to ELF fields of particularfrequencies and intensities for specificduration. The mechanism by which thoseeffects occur are not known. It is also unknownwhether the changes that have been observedare in fact harmful to the organisms involved,whether they would be harmful if they occurredin humans, or whether exposure to ELF fieldsresults in numerous biological effects that infact cancels each other out. Additionally, it isunknown whether humans or other animals areable to adapt to exposure, either immediatelyor after. Some of the experimentsdemonstrating biological effects, the effectsdisappeared upon increased, as well asdecreased exposure.

Therefore, it is impossible to conclude that anygiven level of exposure is definitely harmful.Consequently, it is impossible at this time toprescribe alterations in electric transmissionand distribution systems that are likely tosignificantly reduce the risks, if any, of theexposure to ELF fields.

At present the scientific evidence regarding thepossibility of adverse effects from exposure topower frequency fields, as well as thepossibility of reducing or eliminating sucheffects, is inconclusive. The remaining questionis how the legal system, including both thejudiciary and the various regulatory agencies,should respond to this scientific uncertainty.”

The research project known as the New York PowerLine Projects (NYPLP) was established to investigateindependence and without any bias on several projectsparticularly for considering the implication of Wythmerand Leeper study which suggested association betweenproximity to power lines and childhood leukaemia. Theauthor has summarised the conclusion of this projectas follows:-

“The panel concluded that they had documentedbiological effects of electric and magnetic fieldsand that several of those findings were worthyof further consideration because of their possibleimplications for human health. The panel wasnot able, however, to identify any adverse health

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effects. Although the replication of the Wythmerand Leeper study basically confirmed the study’sfinding of an association between power linesconfigurations and childhood cancer, the panelwas unable to offer any recommendation basedon this other epidemiological studies becauseof methodological difficulties with quantifyingmagnetic field exposure levels and the lack ofany established casual relationship betweenweak magnetic fields and cancer.”

Finally, the panel recommended further researchin the following areas:

The possible association between cancer and exposureto magnetic fields, and effects of exposure on learningability.

• The possible existence of thresholds for biologicaleffects; and

• Methods of power delivery for use that wouldreduce magnetic fields.”

After this report, a staff task force was appointed bythe Chairman of the New York Public ServiceCommission to evaluate the report of NYPLP anddevelop recommendations for consideration by it. Thetask force noted that “the researchers had notdetermined whether the effects that had beenestablished would persist at lower field intensities orwhether there was a threshold below which the effectsdisappeared.” Nonetheless the task force found thatthe results were disturbing enough to requireepidemiological studies preferably in New York”. Therecommendations made by the NYPLP were endorsedby the task force.

Dr. Mirza Arshad Ali Baig who was at that timeDirector-General of Planning and Development andIndustrialisation of Pakistan Council of scientific andIndustrial Research in response to a query made by Dr. Tariq Banuri has given his opinion as follows: -

“The information that is so far available with mesuggests that transmission lines give rise to magneticfields which have extremely high intensity comparedwith naturally occurring fields. This is particularly withsources operating at power frequencies of 50 or 60 Hzwhere magnetic fields of very high magnitudecompared with the natural are common. Any one nearthe transmission lines is, therefore exposed to excessivemagnetic field.

So far there is no direct evidence of effects of exposureto magnetic fields but there are indications that an

excess in the incidence of cancer among children andadults associated with very weak (0.1 to 1 mT) 50 or60 Kg magnetic flux densities such as those directlyunder high tension wires, welding acres, inductionheaters and a number of home appliances. The ill-effects have just started surfacing up because ofavailability of some health facilities and institutionswhere ailments of many kinds are being reported. InPakistan these effects may easily be attributed toanything other than scientific. Instead of waiting forabnormal cases to be reported in our situation it isperhaps imperative that we go for sustainabledevelopment and discourage installation oftransmission lines over the residential areas anywhere.”

The opinion of Dr. Muhammed Hanif, Officer inCharge, Environmental Research and Pollution Controlof Scientific and Industrial Research , Lahore, dated10-7-1991, after referring to various studies andresearch made in USA, concluded as follows: -

“ According to my conclusion, I draw fromthe literature so far read by me, there is goingto be proved ill-health effects on human –beings associated especially with the highvoltage transmission. However, for a whilesetting aside the question of ill-health effects,of energy concentrated electrical waves, thereremains a constant concern about the safetyfactor. The high structures especially to beinstalled for the transmission of electricity andthe high voltage current passing through thosetransmission lines continue to pose constantdanger to the people and the property in thearea under their direct hit in case thesestructures collapse due to any cause.”

A document research paper entitled Electromagnetic(EH) Radiation – A threat to Human health, by Brig.(Rtd.) Muhammed Yasin of Sustain DevelopmentPolicy Institute has also been relied upon by thePetitioners. The author has referred to some reportedresearch conclusions as follows: -

“The risk of dying from acute myeloidleukaemia is increased by 2.6 if you work inelectrical occupation especially if you are atelecommunications engineer or radio amateur.Service personnel exposed to non-ionisingradiation are seven times more than unexposedcolleagues to develop cancer of the bloodforming organs and lymphatic tissues and arelikely to develop thyroid tumours. 10 to 15 percent of all childhood cancer cases might beattributable to power frequency fields found in

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homes (23/115 V 50-60 Hz). The risk ofchildhood cancer more than doubles in homeswhere the average 60 Hz magnetic field is over300 MT.”

He has also referred to Swedish studies on effect ofhigh tension power lines on the health of children anddetected higher risk of leukaemia. This study alsoindicated that prolonged exposure to electromagneticfields has links to leukaemia in adults. His conclusionand recommendations are to create awareness, to adoptsafety standards prescribed by developed countries andundertake studies and research.

From the above material produced on record whichcontains up to date studies and research, it seems thatso far no definite conclusions have been drawn by thescientists and scholars, but the trend is in support ofthe fact that there may be likelihood of adverse effectsof electromagnetic fields on human health. It is forthis reason that in all the developed countries, special care is being taken to carry further research on the subject. The studies are, notcertain, but internationally, there seems to be aconsensus that the lurking danger which in an indefinitemanner has been found in individual incidents andstudies cannot be ignored. WAPDA on the other handinsists on executing plan which according to it iscompletely safe and risk free. The material placed byWAPDA is based on studies carried out two decadesback. The other statement is based on their workerswho are in grid stations, and further, that from thelocality no such complaint has been made as in thepresent case. The research and opinion relied upon byWAPDA is not the latest one nor most authentic sourceas they are only relying on old opinions.

In the present-day controversies where every day newavenues are opened, new researches are made and newprogress is being reported in the electrical fields, itwould be advisable for WAPDA to employ betterresources and personnel engaged in research and studyto keep themselves up-to-date in scientific andtechnical knowledge and adopt all such measureswhich are necessary for safety from adverse effects ofmagnetic and electric fields.

On the other hand, the materials placed by thePetitioners are the latest researches carried out toexamine the magnetic fields’ effect on health and alsoabout the possible dangers that may be caused to humanbeings. In the absence of any definite conclusion thatelectromagnetic fields do not cause childhoodleukaemia and adult cancer and in the presence ofstudies, the subject requires further research and the

conclusions drawn earlier in favour of the powercompany are doubtful- safest course seems to be toadopt a method by which danger, if any, may beavoided. At this stage it is not possible to give a definitefinding on the claims of either side. There is a state ofuncertainty and in such a situation, the authoritiesshould observe the rules of prudence and precaution.The rule of prudence is to adopt such measures whichmay avert the so-called danger, if it occurs. The ruleof precautionary policy is to first consider the welfareand safety of the human- beings and the environmentand then to pick up a policy and execute the plan whichis more suited to obviate the possible dangers or makesuch alternate precautionary measures which mayensure safety. To stick to a particular plan on the basisof old studies or inconclusive research cannot be saidto be a policy of prudence or precaution.

There are instances in American studies that the powerauthorities have been asked to alter and mould theirprogramme and planning in such a way that theintensity and the velocity is kept at the lowest level. Itis a highly technical subject upon which the Courtwould not like to give a definite finding particularlywhen the experts and the technical evidence producedis inconclusive. In these circumstances the balanceshould be struck between the rights of the citizens andalso the plans which are executed by the powerauthorities for welfare, economic progress andprosperity of the country.

Dr. Parvez Hasan, learned counsel for the Petitionercontended that the Rio Declaration on Environmentand Development has recommended the precautionaryapproach contained in principle No. 15, which readsas follows:-

“ Principle 15. – In order to protect theenvironment, the precautionary approachshould be widely applied by States accordingto their capabilities. Where there are threatsof serious or irreversible damage, lack of fullscientific certainty shall not be used as a reasonfor postponing cost-effective measures toprevent environmental degradation.”

The concern for protecting environment was firstinternationally recognised when the declaration ofUnited Nations Conference on the HumanEnvironment was adopted at Stockholm on 16-6-1972.Thereafter it has taken two decades to create awarenessand consensus among the countries when in 1992 theRio Declaration was adopted. Pakistan is a signatoryto this declaration and according to Dr. Parvez Hassanalthough it has not been ratified or enacted, the

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principle so adopted has its own sanctity and it shouldbe implemented, if not in letter, at least in spirit. Anagreement between the nations if signed by anyCountry is always subject to ratification, but it can beenforced as a law only when legislation is made bythe Country through its legislature. Without framing alaw in terms of the international agreement theCovenants of such agreements cannot be implementedas a law nor do they bind down any party. This is thelegal position of such documents, but the fact remainsthat they have a persuasive value and command respect.

The Rio Declaration is the product of hectic discussionamong the leaders of the nations of the world and itwas after negotiations between the developed and thedeveloping countries that an almost consensusdeclaration had been sorted out. Environment is aninternational problem having to frontiers creating trans-boundary effects. In this field, every nation has to co-operate and contribute and for this reason the RioDeclaration would serve as a great binding force andto create discipline among the nations while dealingwith environmental problems. Coming back to thepresent subject, it wouldn't be out of place to mentionthat Principle No.15 envisages rule of precaution andprudence. According to it, if there are threats of seriousdamage, effective measures should be taken to controlit and should not be postponed merely on the groundthat scientific research and studies are uncertain andnot conclusive. It enshrines the principle thatprevention is better that cure. It is a cautious approachto avert a catastrophe at the earliest stage. Pakistan isa developing country. It cannot afford the researchesand studies made in developed countries on scientificproblems particularly the subject at hand.

However, the researches and their conclusions withreference to specific cases and available, information and knowledge is at hand and we shouldtake benefit out of it. In this background if we considerthe problem faced by us in this case, it seemsreasonable to take preventive and precautionarymeasures straight away instead of maintaining statusquo because there is no conclusive finding on the effectof electromagnetic fields on human life. One shouldnot wait for conclusive finding as it may take ages tofind out and, therefore, measures should be taken toavert any possible danger and for that reason oneshould not scrap the entire scheme but could makeadjustments, alterations or additions which may ensuresafety and security or at least minimise the possiblehazards.

10. The issue in this petition involves the welfare andsafety of the citizens at large because the network of

high tension wires is spread throughout the country.One cannot ignore that energy is essential for present–day life, industry, commerce and day-to day affairs.The more energy is produced and distributed, the moreprogress and economic development become possible.Therefore, a method should be devised to strike balancebetween economic progress and prosperity and tominimise possible hazards. In fact a policy ofsustainable development should be adopted. It will thusrequire a deep study into the planning and the methodsadopted by WAPDA for construction of the grid station.

The studies in USA referred to above have suggestedthat certain modes can be adopted by which hightension frequency can be decreased. This is purelyscientific approach which has to be dealt with anddecided by the technical and scientific personsinvolved in it. It is for this reason that both the partieshave agreed that NESPAK should be appointed asCommissioner to examine the plan and the proposal/schemes of WAPDA in the light of the complaint madeby the petitioners and submit its report and if necessaryto suggest any alteration or addition which may beeconomically possible for constructing a grid station.The location should also be examined and reportsubmitted at the earliest possible time.

At this stage it may be pointed out that in all thedeveloped countries great importance has been givento energy production. Our need is greater as it is boundto affect our economic development, but in the questof economic development one has to adopt suchmeasures which may not create hazards to life, destroythe environment and pollute the atmosphere. From thecomments filed by WAPDA it seems that they are in consultation with the Ministry of Water and Powerhave prepared a plan for constructing a grid stationfor distribution of power.

While making such a plan, no public hearing is givento the citizens nor any opportunity is afforded to theresidents who are likely to be affected by the high-tension wires running near their locality. It is only aone-sided affair with the Authority which prepares andexecutes its plan. Although WAPDA and theGovernment may have been keeping in mind the likelydangers to the citizens’ health and property, no dueimportance is given to seek opinion of theresidents of the locality where the grid station isconstructed or from where the high-tension wires run.

In USA Public Service Commission has been appointedfor the purpose of regulating and formulating the planand permission for establishing a grid station. It hearsobjections and decides them before giving permission

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to construct such a power station. No such procedurehas been adopted in our Country. Being a developingcountry, we will need many such grid stations and linesfor transmission of power. It would, therefore, beproper for the Government to establish an Authorityor Commission manned by internationally known andrecognised scientists having no bias and prejudice tobe members of such a Commission whose opinion orpermission should be obtained before any new gridstation is allowed to be constructed. Such Commissionshould also examine the existing grid stations and thedistribution lines from the point of view of healthhazards and environmental pollution. If such a step istaken by the Government in time, much of the problemin future can be avoided.

The learned counsel for the respondent has raised theobjection that the facts of the case do not justifyintervention under Art. 184 of the Constitution. Themain thrust was that the grid station and thetransmission line are being constructed after a properstudy of the problem taking into consideration the riskfactors, the economic factors and also necessity andrequirement in a particular area. It is after dueconsideration that planning is made and is beingexecuted according to rules. After taking such steps,the possibility of health hazards is ruled out and thereis no question of affecting property and health of anumber of citizens nor any fundamental right isviolated which may warrant interference under Art.184. So far as the first part of the contention regardinghealth hazards is concerned, sufficient discussion hasbeen made in the earlier part of the judgment and neednot be repeated. So far as the fundamental rights areconcerned, one has not to go too far to find the reply.

Article 9 of the Constitution provides that no personshall be deprived of life or liberty save in accordancewith the law. The word “life” has not been defined inthe Constitution but it does not mean nor can it berestricted only to the vegetative or animal life or mereexistence from conception to death. Life includes allsuch amenities and facilities which a person born in afree country is entitled to enjoy with dignity, legallyand constitutionally.

For the purposes of present controversy, suffice to saythat a person is entitled to protection of the law frombeing exposed to the hazards of electro-magnetic fieldsor any other hazards which may be due to installationand construction of any grid station, any factory, powerstation or such like installations.

Under common law, a person whose right ofeasement, property or health is adversely affected by

any act, omission or commission of a third person inthe neighbourhood or at a far off place, is entitled toseek an injunction and also claim damages, but theConstitutional rights are higher than the legal rightsconferred by law be it municipal law or the commonlaw. Such a danger as depicted, the possibility of whichcannot be excluded, is bound to affect a large numberof people who may suffer from it unknowingly becauseof lack of awareness, information and education andalso because such sufferance is silent and fatal andmost of the people who would be residing near , underor at a dangerous distance of the grid station or suchinstallation do not know that they are facing any riskor are likely to suffer by such risk. Therefore, Art. 184can be invoked because a large number of citizensthroughout the country cannot make suchrepresentation and may not like to make it due toignorance, poverty and disability. Only someconscientious citizens aware of their rights and thepossibility of danger come forward and this hashappened in the present case.

According to the Oxford Dictionary, ‘ life’ means “state of all functional activity and continual changepeculiar to organised matter and specially to the portionof it constituting an animal or plant before death andanimate existence.”

In Black’s law Dictionary, ‘life’ means “that state ofanimals, humans and plants or of an organised being,in which its natural functions and motions areperformed or in which its organs are capable ofperforming their functions; the interval between birthand death; the sum of the forces by which death isresisted. ‘Life’ protected by the FederationConstitution includes all personal rights and theirenjoyment of the faculties, acquiring useful knowledge,the right to marry, establish a home and bring upchildren, freedom of worship, conscience, contractoccupation, speech, assembly and press."

The Constitutional Law in America provides anextensive and wide meaning to the word ‘life’ whichincludes all such rights which are necessary andessential for leading a free, proper, comfortable andclean life. The requirement of acquiring knowledge,to establish a home and the freedoms as contemplatedby the Constitution, the personal rights and theirenjoyment are nothing but part of life.

A person is entitled to enjoy his personal rights and tobe protected from encroachments on such personalrights, freedoms and liberties. Any action taken whichma create hazards of life will be encroaching upon thepersonal rights of a citizen to enjoy the life according

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to law. In the present case this is the complaint thepetitioners have made. In our view the word ‘life’constitutionally is such life that the danger andencroachment complained of would impingefundamental rights of a citizen. In this view of thematter the Petition is maintainable.

14. Dr. Parvez Hasan, learned counsel has referred tovarious judgments of the Indian Supreme Court inwhich the term ‘life’ has been explained with referenceto public interest litigation. In Kharak Singh v. State ofUP (AIR 1963 SC 1295) for Interpreting the word ‘life’used in Article 21 of the Indian Constitution, reliancewas placed on the judgment of Field, J. in Munn vIllinois (1876) 94 US 113 at page 142 where it wasobserved that ‘life’ means not merely the right to thecontinuance of a person’s animal existence but a rightto the possession of each of his organs – his arms andlegs etc.” In Francis Corali v.Union Territory of Delhi(AIR 1981 SC 746) Bhagvati, J observed that right tolife includes right to live with human dignity and allthat goes along with it, namely the bare necessities oflife such as adequate nutrition, clothing and shelterand facilities for reading and writing in diverse form."Same view has been expressed in Olga Tellis andothers v. Bombay Municipal Corporation (AIR 1986SC 180) and State of Himachal Pradesh and anotherv. Umed Ram Sharma and Others (AIR 1986SC 847).In the first case, right to life under the Constitution washeld to mean right to livelihood. In the latter case thedefinition has been extended to include the ‘quality oflife’ and not merely physical existence. It was observedthat ‘for residents of hilly areas, access to roads isaccess to life itself.’ Thus, apart from the wide meaninggiven by the US Courts, the Indian Supreme Courtseems to give a wider meaning which includes thequality of life, adequate nutrition, clothing and shelterand cannot be restricted merely to physical existence.

The word ‘life’ in the Constitution has not been usedin a limited manner. A wide meaning should be givento enable a man not only to sustain life but to enjoy it.Under our constitution, article 14 provides that thedignity of man under article 14 is unparalleled andcould be found only in the few constitutions of theworld. The constitution guarantees dignity of man andalso right to ‘life’ under article 9 and if both are readtogether, questions will arise whether a person can besaid to have dignity of man if his right to life is belowbare necessity like without proper food, clothing,shelter, health, education, care, clean and unpollutedenvironment. Such questions will arise forconsideration which can be diliberated upon in moredetailed consideration

in a proper proceeding involving such specificquestions.

Dr. Parvez Hasan has also referred to several judgmentsof the Indian Supreme Court in which issues relatingto environment and ecological balance were raised andrelief was granted as the industrial activity causingpollution had degraded the quality of life.

In Rural Litigation and Entitlement, Kendra andothers v. State of UP and others (AIR 1985 SC 652)mining operation carried out through blasting wasstopped and directions were issued to regulate it. Thesame case came up for further consideration andconcern was shown for the preservation and protectionof environment and ecology.

However, considering the defence need and for earningforeign exchange some queries were allowed to beoperated in a limited manner subject to strict controland regulations. These judgments are reported in AIR1987 SC 359 and 2426 and AIR 1988 SC 2187 andAIR 1989 SC 594. In Shri Sachidanand Pandey andanother v. The State of West Bengal and Others (AIR1987 SC 1109,) part of the land of zoological gardenwas given to Taj Group to build a five-star hotel. Thistransaction was challenged in the High Court withoutsuccess. The appeal was dismissed. Taking note of thefact that society’s interaction with nature is so extensivethat ‘environmental question has assumed proportionaffecting all humanity,” it was observed that: -“Obviously, if the Government is alive to the variousconsiderations requiring thought and deliberation andhas arrived at a conscious decision after taking theminto account, it may not be for this Court to interferein the absence of mala fides. On the other hand, ifrelevant considerations are not borne in mind andirrelevant considerations influence the decision, theCourt may interfere in order to prevent a likelihood ofprejudice to the public.”

In M.C. Mehta v. Union of India (AIR 1988 SC 1115)and M.C. Mehta v. Union of India (AIR 1988 SC1037) the Court on Petition filed by a citizen takingnote of the fact that the municipal sewage and industrialeffluents from tanneries were being thrown into RiverGanges whereby it was completely polluted, thetanneries were closed down. These judgments go a longway to show that in cases where life of citizens isdegraded, the quality of life is adversely affected andhealth hazards are created affecting a large number ofpeople, the Court in exercise of its jurisdiction underArticle 184(3) of the Constitution may grant relief tothe extent of stopping the functioning of factories

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which create pollution and environmental degradation.

16. In the problem at hand the likelihood of any hazardto life by magnetic fields cannot be ignored. At thesame time, the need for constructing grid stations whichare necessary for industrial and economic developmentcannot be lost sight of. From the material produced bythe parties, it seems that while planning and decidingto construct the grid station WAPDA and theGovernment Department acted in a routine mannerwithout taking into consideration the latest researchand planning in the field nor that any thought seems tohave been given to the hazards it may cause to humanhealth. In these circumstances, before passing any finalorder, with the consent of both parties, we appointNESPAK as Commissioner to examine and study thescheme, planning, device and technique employed byWAPDA and report whether there is any likelihood ofany hazard or adverse effect of health of the residentsof the locality. NESPAK may also suggest variation inthe plan for minimising the alleged danger. WAPDA

shall submit all the plan, schemes and relevantinformation to NESPAK.

The Petitioners will be at liberty to send NESPAKnecessary documents and material as they desire. Thesedocuments should reach NESPAK within two weeks.NESPAK is authorised to call for such documents orinformation from WAPDA or the Petitioners which intheir opinion is necessary to complete their report. Thisreport should be submitted within four weeks of thereceipt of the Order after which further proceedingshall be taken.

WAPDA is further directed that in future prior toinstalling or constructing any grid station and/ortransmission line, they would issue public notice innewspapers, radio, television inviting objections andto finalise the plan after considering the objections.This procedure shall be adopted and continued byWAPDA till such time the Government constitutes anyauthority as suggested above.

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Order:

1. This case has been argued at great length beforeus not only because a large number of lessees oflime stone quarries are involved and each of themhas painstakingly and exhaustively canvassed hisfactual as well as legal points of view but alsobecause this is the first case of its kind in thecountry involving issues relating to theenvironment and ecological balance and thequestions arising for consideration are of gravemoment and significance not only to the peopleresiding in the Mussoorie Hill range forming partof the Himalayas but also in their implications tothe welfare of the generality of people living inthe country. It brings into sharp focus the conflictbetween development and conservation andserves to emphasize the need for reconciling thetwo in the larger interest of the country. But sincehaving regard to the voluminous material placedbefore us and the momentous issues raised fordecision. It is not possible for us to prepare a fulland detailed judgment immediately at the sametime. On account of interim order made by us,mining operations carried out through blastinghave been stopped and the ends of justice requirethat the lessees of lime stone quarries shouldknow, without any unnecessary delay, as towhere they stand in regard to their lime stone

RURAL LITIGATION AND ENTITLEMENT KENDRA DEHRADUNAND OTHERS

VERSUS

STATE OF UTTAH PRADESH AND OTHERS

(Writ Petns. Nos. 8209 and 8821 of 1983 D.12-3-1985)

Air 1985 Supreme Court 652 (P.N. Bhagwati, Amerendra Nath Sen and Ranganath Misra JJ) (India)

[A] Constitution of India, Art 32• Writ petition• Imbalance to ecology and hazard to healthy environment due to working on limestone quarries• Supreme Court ordered their closure [Ecological balance• Preservation public health• Hazard to [minor minerals close down of mining operations on count of public health].

[B] Constitution of India, Art 32-• Writ petition-• Advocates fee- advocate of a party rendering valuable assistance to court in hearing petition• Supreme court directed the union Government and state Government respondents to petition to pay him

5000 each as additional

quarries, we propose to pass our order on the writpetitions. The reasons for the order will be setout in the judgment to follow later.

2. We had by an order dated 11th August 1983appointed a committee consisting of Shri D. N.Bhargav Controller General, Indian bureau ofmines, Nagpur Shri M.S. Kahlon, DirectorGeneral of mines safety and Col. P. Mishra, headof the Indian Photo Interpretation Institute(National Remote Sensing Agency) for thepurpose of inspecting the lime stone quarriesmentioned in the writ petition as also in the listsubmitted by the Government of Utta Pradesh.This committee which we shall here in after forthe sake of convenience refer to as Bhargavcommittee, submitted three reports afterinspecting most of the lime stone quarries anddivided the limestone quarries into three groups.The lime stone quarries comprised in category Awere those where in the opinion of the Bhargavcommittee the adverse impact of miningoperations was relatively less pronounced.Category B compromised those lime stonequarries where in the opinion of the Bhargavcommittee, the adverse impact of miningoperations was relatively more pronounced andcategory C covered those lime stone quarrieswhich had been directed to be closed down by

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quarries was more pronounced while the workinggroup definitely took the view that these limestone quarries were not suitable for furthermining.

5. While making this order we are not going intothe various ramifications of the argumentsadvanced before us but we may observestraightway that we do not propose to rely on thereport of Prof. K.S. Valdia, who was one of themembers of the expert committee appointed byour order dated 2nd September 1983, as modifiedby the order dated 25th October 1983. Thiscommittee consisted of Prof. K. S. Valdia ShriHukum Singh and Shri D.N.Kaul and it wasappointed to enquire and investigate into thequestion of disturbance of ecology and pollutionand affectation of air, water and environment byreason of quarrying operations or stone crushersor lime stone kilns. Shri D.N. Kaul and ShriHukum Singh submitted a joint report in regardto the various aspects while Prof. K. S. Valdiasubmitted a separate report. Prof. K. S. Valdia’sreport was confined largely to the geologicalaspect and in the report he placed considerablereliance on the main boundary thrust and he tookthe view that the limestone quarries which whichwere dangerously close to the M.B.T. should beclosed down, because they were in this sensitiveand vulnerable belt. We shall examine this reportin detail when we give our reasons but we maystraightway point out that we do not think it safeto direct continuance or discontinuance of miningoperations in lime stone quarries on the basis ofthe M.B.T. We are therefore not basing ourconclusions on the report of Prof. K. S. Valdiabut while doing so, we may add that we do not fora moment wish to express any doubt on thecorrections of his report.

6. We shall also examine in detail the question as towhether lime stone deposits act as aquifers ornot. But there can be no gainsaying that limestonequarrying and evacuation of the lime stonedeposits do seem to affect the perennial watersprings. The environmental disturbance hashowever to be weighed in the balance against theneed of lime stone quarrying for industrialpurposes in the country and we have taken thisaspect into account while making this order.

7. We are clearly of the view that so far as the limestone quarries classified in category C in theBhargav committee report are concerned, whichhave already been closed down under the

the Bhargav committee under the orders made byus on account of degrading safety and hazards ofmore serious nature.

3. It seems that the Government of India alsoappointed a working group on mining of limestone quarries in Dehradun area sometime in1983. The working Group was also headed bythe same sh. D.N. Bhargav who was a member ofthe Bhargav committee appointed by us. Therewere five other members of the working groupalong with shri D.N. Bhargav and one of themwas Dr. S.Mudgal who was at the relevant timeDirector in the department of environment,Government of India and who placed the reportof the working group before the court along withthis affidavit. The working group in its reportsubmitted in September 1983 made a review oflime stone quarry leases for continuance of miningoperations and after a detailed consideration ofvarious aspects recommended that the lime stonequarries should be divided into two categories.Namely category 1 and category 2; category 1comprising lime stone quarries consideredsuitable for continuance of mining operations andcategory 2 compromising lime stone quarrieswhich were considered unsuitable for furthermining.

4. It is interesting to note that the lime stone quarriescomprised in category A of the BhargavCommittee report were the same lime stonequarries which were classified in category I bythe working group and the limestone quarries incategories B and C of the Bhargav committeereport were classified in category 2 of the reportof the working group. It will thus be seen thatboth the Bhargav committee and working groupwere unanimous in their view that the limestonequarries classified in category A by the Bhargavcommittee report and category I by the workinggroup were suitable for continuance of miningoperations. So far as the lime stone quarries incategory C of the Bhargav committee report areconcerned they were regarded by both theBhargav committee and the working group asunsuitable for continuance of mining operationsand both were of the view that they should beclosed down. The only difference between theBhargav committee and the working group wasin regard to limestone quarries classified incategory B. The Bhargav committee report tookthe view that this lime stone quarries need not tobe closed down. But it did observe that the adverseimpact of mining operations in these limestone

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directions of the Bhargav Committee should notbe allowed to be operated. If the les of theselime stone quarries have obtained any stay orderfrom any court permitting to continue the miningoperations, such stay order will stand dissolvedand if there are any subsisting leases in respectof any of these lime stone quarries, they shall standterminated with out any liability against the stateof Uttar Pradesh. If there are any suits or writpetitions for continuance of expired or unexpiredleases in respect of any of these lime stonequarries pending, they will stand dismissed.

8. We should also give the same directive in regardto the lime stone quarries in the SahasradharaBlock even though the Bhargav committee placesthem in category B. So far as these stone quarriesin Sahasradhara Block are concerned, we agreewith the report made by the working group andwe direct these lime stone should not be allowedto be allowed to be operated and should be closeddown forth with. We would also direct agreeingwith the report made by the working group thatthe lime stone quarries placed in category 2 bythe working group other than those which areplaced in categories B and C by the Bhargavcommittee should also not be allowed to beoperated and should be closed down save andexcept for the limestone quarries covered bymining leases No. 31, 36 and 37 for which wewould give the same direction as we are giving inthe succeeding paragraphs in regard to the limestone quarries classified as category B in theBhargav committee report. If there are anysubsisting leases in respect of any of these limestone quarries they will forthwith come to an endand if any suits or writ petitions for continuancefor expired or unexpired leases in respect of anyof these lime stone quarries are pending, they too will stand dismissed.

9. So far as the lime stone quarries classified ascategory A in the Bhargav committee repot andof category A in the working group report areconcerned, we would divide them into twoclasses, one class consisting of these lime stoneQuarries which are within the city limits ofMussorie and the other consisting of those whichare outside the city limits. We take the view thatthe lime stone quarries falling in category A ofthe Bhargav committee report and for category Aof the working group report and falling out sidethe city limits of Mussorie should be allowed tobe operated subject of course to the observanceof the requirements of the Mines Act 1952, the

Metalliferous Mines regulations. Of course whenwe say this we must make it clear that we are notholding that if the leases in respect of these limestone quarries have expired and suits or writpetitions for renewal of the leases are pending inthe courts, such leases should be automaticallyrenewed. It will be for the appropriate courts todecide whether such leases should be renewed ornot, having regard to the law and facts of eachcase. So far as the limestone quarries classifiedin category A in the Bhargav committee reportand/or category 1 in the working group report andfalling within the city limits of Mussorie areconcerned, we would give the same direction,which we are giving in the next succeedingparagraph in regard to the lime stone quarriesclassified as category B in the Bhargav committeereport.

10. That takes us to the lime stone quarries classifiedas category B in the Bhargav committee reportand category 2 in the working group report. Wedo not propose to clear these lime stone quarriesfor continuance of mining operations to closethem down permanently without further injury.We accordingly appoint a high poweredcommittee consisting of Mr. D. Bandyopadyay,Secretary, Ministry for Rural Development aschairman and Shri H. S. Ahuja, Director General,Mines safety Dhanbad, Bihar, Shri D. N. Bhargav,Controller General, Indian Bureau of Mines, NewSecretariat Building Nagpur and two experts tobe nominated by the department of Environment,Government of India within four weeks from thedate of this order.

The lessees of the lime stone quarries classifiedas category A in the Bhargav committee reportand/or category 1 and the working group reportand falling within the city limits of Mussoorie asalso the lessees of the lime stone quarriesclassified as category B in the Bhargav committeereport will be at liberty to submit a full anddetailed scheme for mining their lime stonequarries to this committee there in after calledthe Bandypathyay committee and if any suchscheme or schemes are submitted theBandyopathyoy committee will proceed toexamine the same with out any unnecessary delayand submit a report to this court whether in itsopinion the particular lime stone quarry can beallowed to be operated in accordance with thescheme and if so, subject to what conditions andit can not be allowed to be operated the reasonsfor taking that view. The Bandyopadhyay

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committee in making its report will take intoaccount the various aspects which we had directedthe Bhargav committee and the Kaul committeeto consider while making their respective reportsincluding the circumstances that the particularlime stone quarry may or may not be within thelimits of Mussoorie and also give an opportunityto the concerned lessee to be heard, even thoughit be briefly. The Bandyopadhyay committee willalso consider, while making its report, whether anyviolations of the provisions of the mines Act 1952,the Metalliferous mines regulations, 1961 andother relevant statutes, rules and regulations werecommitted by the lessee submitted the scheme orschemes and if so, what were the nature, extentand frequency of such violations and theirpossible hazards.

The Bandyopadhyay committee will also insiston a broad plan of exploitation coupled withdetailed mining management plans to besubmitted along with the scheme or schemes andtake care to ensure that the lime stone depositsare exploited in a scientific and systematic mannerand if necessary, even by law or more leseescoming together and combining the areas of thelime stone quarries to be exploited by them. Itshould also be the concern of the Bandyopadhyaycommittee while considering the scheme orschemes submitted to it and making its report, toensure that the lime stone on exploitation, isspecifically utilized only in special industrieshaving regard to its quality and is not wasted bybeing utilized in industries for which high gradelime stone is not required. The necessary fundsfor the purpose of meeting the expenses that mayhave to be incurred by the members of theBandypadhyay committee will be provided by thestate of the Uttar Pradesh including their travellingand other allowances appropriate to their office.

The State of Uttar Pradesh will also provide tothe members of the Bandypadhyay committeenecessary transport and other facilities for thepurpose of enabling them to discharge theirfunctions under this order. If any notices are tobe served by the Bandyopadhyay committee theDistrict Administration of Dehradun will providethe necessary assistance for serving of suchnotices on the lessees or other interested parties.The Bandyopadhyay committee will also beentitled before expressing its opinion on thescheme or schemes submitted to it, to hear thepetitioner, the interventionists in this case andsuch other persons or organizations as may be

interested in maintenance and preservation ofhealthy environment and ecological balance. TheIndian Bureau of Mines will provide secretarialfacilities to the Bandypadhyay committee inwhich case, will be considered by the court andthe decision will then be taken whether the limestone quarry or quarries in respect of which thereport has been made should be allowed to beoperated or worked and the District Authoritiesof Dehradun will take prompt and active stepsfor the purpose of ensuring that these lime stonequarries are not operated or worked and no miningactivity is carried on even clandestinely.

This order made by us will supersede any stay orany other interim order obtained by the lesseesof any of these lime stone quarries permitting himto carry on mining operations and notwithstanding such stay order or other interimorder or subsisting lease, the lessees shall not beentitled to carry on any mining activitywhatsoever in any of these lime stone quarriesand shall desist from doing so. The lessees of theselime stone quarries will also not in the meanwhilebe permitted to rectify the defects pointed out inthe orders issued by the district mining authoritiesbut they may include the proposal for suchrectification in the scheme or schemes which theymay submit to the Bandyopadhyay committee. Wemay however make it clear that non-rectificationof the defects pursuant to the notices issued bythe District Mining Authorities shall not be takenadvantage of by the state of Uttar Pradesh as aground for terminating the lease or leases.

11. We may point out that so far as the lime stonequarries at site No.17 to 20 in category B in theBhargav committee report are concerned, we areinformed that they have already been closed downand no further direction therefore is necessary tobe given in regard to removal of the lime stone,dolomite and marble chips which may alreadyhave been mined and which may be lying at thesite for which we are giving separate directionsin one of the succeeding paragraphs in this order.

12. The consequence of this order made by us wouldbe that the lessees of lime stone quarries whichhave been directed to be closed down permanentlyunder this order or which may be directed to beclosed down permanently after consideration ofthe report of the Bandopadhyay committee, wouldbe thrown out of business in which they haveinvested large sums of money and expandedconsiderable time and effort. This would

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undoubtedly cause hardship to them, but it is aprice that has to be paid for protecting andsafeguarding the right of the people to live inhealthy environment, minimal disturbance ofecological balance and without avoidable hazardto them and their cattle, homes and agriculturalland and undue affection of air, water andenvironment. However, in order to migrate theirhardship, we would direct the Government ofIndia and the state of Uttar Pradesh wheneveranother area in the state of Uttar Pradesh is thrownupon for grant of lime stone or dolomitequarrying, the lessees who are disciplined as aresult of this order shall be afforded priority ingrant of lease of such area and intimation thatsuch an area is available for grant of lease shallbe given to the lessees who are displaced so thatthey can apply for grant of lease of such area andon the basis of such application, priority may begiven to them subject, of course, to their otherwise being found fit and eligible. We have nodoubt that while throwing open new areas forgrant of lease for limestone or dolomite quarrying,the Government of India and the state of UttarPradesh will take into account the considerationsto which we have adverted in this order.

13. We are conscious that as a result of this ordermade by us, the workmen employed in thelimestone quarries which have been directed tobe closed down permanently after considerationof the report of the Bandyopadhyay committeewill be thrown out of employment and even thoseworkmen who are employed in the limestonequarries which have been directed to be closeddown temporarily pending submission of schemeor schemes by the leases and consideration of suchscheme or schemes by the Bandyopadhyaycommittee will be without work for the timebeing. But the limestone quarries which have beenor which may be directed to be closed downpermanently will have be reclaimed andafforestation and soil conservation program willhave to be taken up in respect of such limestonequarries and we would therefore direct thatimmediate step shall be taken for reclamation ofthe areas forming part of such limestone quarrieswith the help of the already available Eco- TaskForce of the department of Environment.Government of India and the workmen who arethrown out of employment in consequence of thisorder shall as far as practicable and in the shortestpossible time, be provided employment in theafforestation and soil conservation program to betaken up in this area.

14. There are several applications before us forremoving of limestone dolomite and marble chipsmined from the quarries and being disposed ofby this order. So far as limestone quarriesclassified as category A in the Bhargav committeeReport and/or category A in the working groupreport and falling outside the limits of Mussorie Cityare concerned, we have permitted the lessee ofthese lime stone quarries to carry on miningoperations and hence they must be allowed toremove whatever minerals are lying at the site ofthese limestone quarries without any restrictionwhatsoever, save and except those prescribed byany statutes, rules of regulations and subject topayment of royalty. So far as the other lime stonequarries are concerned, whether comprised inCategory A of Bhargav committee report orcategory1 of the working group report and fallingwithin the city limits of Musoorie or falling withincategory B or category C of the Bhargavcommittee report or category 2 of the workinggroup report, there is a serious dispute betweenthe lessees of these limestone quarries on the otherhand and the petitioners and the state of UttarPradesh on the other as to what is the exactquantity of minerals mined by the lessees andlying at the site. We had made an order on 15th

December 1983 requiring the District MagistrateDehradun to depute some officer either of hisdepartment or of the mining department to visitthe site of these limestone quarries for the purposeof assessing the exact quantity of limestone lyingthere and to report in this connection. The DistrictMagistrate Dehradun deputed the sub-divisionalmagistrates of Mussoorie and Dehradun andTehsildar Dehradun to inspect the 20 lime stonequarries comprised in category C of the Bhargavcommittee report which had been ordered to beclosed down under the directions of the Bhargavcommittee and an affidavit was filed on behalf ofthe district magistrate Dehradun by Kedar SinghArya Tehsildar Dehradun, annexing a chartshowing the details of the minerals mined by thelessees of those lime stone quarries and lying atthe site. When again the case came up for hearingbefore us on 5th January 1984, we in order to allayany apprehensions on the part of the lessees thatthe District Authorities had not done their jobcorrectly in assessing the quantity of mineralslying at the site, appointed a committee of twoofficers, namely, Shri D. Bandopadhyay anddirector of Geology for the purpose ofvisiting the limestone quarries which had beendirected to be closed down and to assess thequantity of minerals lying on the site of those

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limestone quarries after giving notice to theconcerned lessees as also to the district magistrateDehradun and the representatives of thepetitioners. Pursuant to the order,Director of Geology and Shri D. Bandopadhyay found that there was very much less than what wasclaimed by the lessees and it does appear thatthough these limestone quarries were directed tobe closed down, illegal mining was being carriedon clandestinely, because otherwise it is difficultto understand how the figures of the quantity ofminerals lying at the site as assessed in December1983 by the district authorities became inflatedwhen Shri D. Bandopadhyay and Director ofGeology made their assessment in January 1984and thereafter the figures again got inflated if thequantity now claimed by the lessees as lying onthe site is correct. We do not however propose togo into the question as to what was the precisequantity of minerals mined by the lessees of theselimestone quarries and lying at the site at the timewhen these limestone quarries were closed downunder the directions of the Bhargav committee.We would permit the lessees to these limestonequarries to remove whatever minerals are foundlying at the site or its vicinity provided of coursesuch minerals are covered by their own respectiveleases and/or quarry permits. Such removal willbe carried out and completed by the leases within4 weeks from the date of this order and it shall bedone in the presence of an officer not below therank of deputy collector to be nominated by thedistrict management. Dehradun a gazetted officerfrom the mines department nominated by thedirector of mines and public spirit individual inDehradun other than Mr. Avdesh Kaushal, to benominated by Shri D. Bandopadhyay. These

nominations shall be made within one week fromtoday and they may be changed from time to timedepending on the exigencies of the situation.Notice of intended removal of minerals lying atthe site shall be given by the lessees to thedistrict magistrate Dehrahun and the personnominated by Shri D. Bandophadyay. No part ofthe minerals lying at the site shall be removed bythe lessees except in the presence of the abovementioned three persons. The lessees will on theexpiry of the period of four weeks submit areport to this court setting out the precisequantities of minerals removed by them from thesite pursuant to this order made by us. The lesseesshall not be entitled to remove any minerals afterthe expiration of the period of four weeks.

15. We also we wish to express our appreciationfor the very commendable assistancerendered to us by Shri Pramod Dayal, learnedadvocate appearing on behalf of some of theselessees. He undertook the responsibility ofarranging the various affidavits and writtensubmissions in a proper and systematic mannerand we must confess that but for the extremelyable assistance rendered by him, it would not havebeen possible for us to complete the hearing ofthis case satisfactorily and to pass this orderwithin such a short time. We would directthat the Government of India and the state of UttarPradesh should each pay a sum of Rs.5000/= toShri Pramod Dayal for the work done by him.We may point out that the payment to Shri PramodDayal is not in lieu of costs but is an additionalremuneration which we are directing to be paidin recognition of the very valuable assistancerendered by him to the Court.

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IN RE: HUMAN RIGHTS CASE

(ENVIRONMENT POLLUTION IN BALOCHISTAN).

Human Right Case No. 31-K92q.

(Pakistan Supreme Court, Pld 1994, Supreme Court 102): September 27th 1992.

PUBLIC TRUST

FACTS

The Supreme Court having taken note of the newspaperitem that nuclear or industrial waste was to be dumpedin Balochistan, which was violative of article 9 of theconstitution, issued an order requiring chief secretaryof Balochistan to provide the court with fullinformation on the allocation or the receipt of theapplication for the allocation of coastal land inBalochistan or any area with in the territorial wastersof Pakistan.

The reports revealed that land had been allotted, inaddition to the Pakistan Navy and Maritime Agencyfor defense purposes, such as ship breaking andagriculture.

HELD

1. The Balochistan Development Authority shouldsubmit to the assistant registrar, Supreme Court,Karaki a list of persons to whom land on the coastalarea of Balochistan have been allotted giving theirnames and full addresses along with copies of theletters of allotment, lease or license which mayhave been issued in their favor.

2. The Government of Balochistan and theBalochistan Development Authority are directedthat if any application for allotment of coastal landis pending or in future any party applies forallotment of such land, then full particulars of suchapplicants shall be supplied to the assistantregistrar, supreme court of Pakistan, Karaki beforemaking any allotment to any such party.

3. The Government functionaries, particularly theauthorities which are charged with the duty to allotthe land in coastal areas should insert a conditionin the allotment letter/license/lease that the allotee/tenant shall not use the land for dumping, treating,burying or destroying by any devise, waste of any

nature including industrial or nuclear waste in anyform. The Balochistan Development Authorityshould also obtain similar undertaking from allthose to whom allotments have been made for shipbreaking, agriculture, or any other purposes.

Arts. 184(3) & 9 – Public Interest Litigation –Environmental hazard and pollution in Balochistan –Supreme Court, having noticed a news item in a dailynewspaper that nuclear or industrial waste was to bedumped in Balochistan which was violative of Art.9of the Constitution, ordered the office to enquire fromthe Chief Secretary of Balochistan whether Coastalland of Balochistan or any area within the territorialwaters of Pakistan had been or was being allotted toany person and if any allotment had been made orapplicants had applied for allotment, their fullparticulars supplied- Plots having been allotted byBalochistan Development Authority. Supreme Courtfurther gave the guidelines for allotment of plots inthe area.

ORDER

I have noticed a news item reported by APP publishedin ‘Dawn’ dated 3-7-1992 entitled “ N- Waste to bedumped in Balochistan.”

In the report apprehension has been expressed that thebusiness tycoons are making attempts to purchasecoastal area of Balochistan and convert it into dumpingground for waste material which may be a big hazardto the developing ports of Guwadir, Pasni, Ormara andJiwani. The coastal land of Balochistan is about 450miles long. To dump waste materials including nuclearwaste from the developed countries would not only behazardous to the health of the people but alsoto the environment and the marine life in the region.

In my view, if nuclear waste is dumped on the coastalland of Balochistan, it is bound to create environmentalhazard and pollution. This act will violate Article 9. Itis, therefore, necessary to first enquire from the ChiefSecretary, Balochistan whether coastal land of

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Balochistan or any other within the territorial water ofPakistan has been or is being allotted to any person. Ifany allotment has been made or applicants have appliedfor allotment, full particulars should be supplied.A letter may also be written to the Editor ‘ Dawn’referring to the news item requesting him to supplyfurther particulars or give the name and address of thereporter of APP from whom necessary information maybe obtained.

JUSTICE SALEEM AKHTAR

ORDER

In compliance with the notice issued on 9yh July 1992,the Chief Secretary had made inquiries from variousdepartments, namely, from the Commissioner ofMakran, Commissioner of Kalat Division and alsofrom the Board of Revenue who had submitted theirreports which were forwarded to this Court. From thereports submitted, it seems that besides the land allottedto the Pakistan Navy and Maritime Agency for defencepurposes, 112 ship breaking plots measuring 336 acresin Gadani Beach, Lasbella District have been allottedto ship breakers for ship- breaking purposes by theBalochistan Development Authority. Furthermore, landmeasuring 29.2.2 acres has been allotted to oneMuhammad Anwar son of Qadire Bukhsh foragriculture purposes. The Chief Secretary while givingdetails has stated that the allotment of land for shipbreaking was made by Balochistan DevelopmentAuthority while the plot measuring 29.2.2 acres wasallotted by the Chief Minister on the recommendationof Balochistan Development Authority.

The officials present have reported that no plot hasbeen allotted to any party fro dumping nuclear waste.The Commissioner, Makran Division has pointed outthat the law enforcing agencies on the high seas arealways on the alert and can locate any vessel from adistance of more than 500 miles.

It may be noted that no one will apply for allotment ofland for dumping nuclear or industrial waste. Thiswould be a clandestine act in the garb of a legal andproper business activity. The authorities are thereforenot only to be vigilant in checking the vessels butregularly check that the allotees are not engaged indumping industrial or nuclear waste of any nature onthe land or in the sea or destroying it by any device.

It seems that the plots have been allotted by theBalochistan Development Authority and all therelevant terms and conditions will be available withthem. In these circumstances, the following interimorder is passed:

The Balochistan Development Authority should submitto the Assistant Registrar, Supreme Court, Karachi, alist of persons to whom land on the coastal area ofBalochistan have been allotted giving their name andfull address along with copies of the letters ofallotment, lease or license which may have been issuedin their favour.

The Government of Balochistan and the BalochistanDevelopment Authority are directed that if anyapplication for allotment of coastal land is pending orin future any party applies for allotment of coastal landis pending or in future any party applies for allotmentof such land then full particulars of such applicantsshall be supplied to the Assistant Registrar, SupremeCourt of Pakistan, Karachi before making anyallotment to any such party.

The Government functionaries, particularly theauthorities which are charged with the duty to allotthe land on coastal area should insert a condition inthe allotment letter/ license/lease that the allottee/tenant shall not use the land for dumping, treating,burying or destroying by any device waste of anynature including industrial or nuclear waste in anyform. The Balochistan Development Authority shouldalso obtain similar undertaking from all allotee towhom the allotment has been made for ship breaking,agriculture or any other purpose whatsoever.

Before parting with the order I record my appreciationfor the officials present who have shown their interestand keenness in tackling the problem. Such eagernesscoupled with public awareness can eliminate much ofthe problems creating health hazard to the citizens.

A copy of this order be sent to all the officers presentand the Balochistan Development Authority, Quetta.

Order accordingly.

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A. Supreme Court Cases 647 (Kuldip Singh, FaizanUddin & K. Venkataswani, JJ): August 28,1996

B. Constitution of India – Arts. 32,21,47,48 –B,51-A(g) – Environmental pollution by TanneryIndustries- while the industries are vital forcountry’s development, but having regard topollution caused by them, principle of sustainabledevelopment has to be adopted as a balancingconcept. Precautionary principle and polluter paysPrinciple acceptable as part of the law of thecountry and should be implemented- Precautionaryenvironmental measures should be taken by StateGovt. and statutory authorities and lack ofscientific certainty cannot be a ground forpostponing such measures where there are seriousthreats to ecology- Onus on polluter industries toprove their actions were environmentally benign– polluter industries liable to pay damage –discharge of untreated effluent by tanneries in stateof T.N. rendering river water unfit for humanconsumption, contaminating the subsoil water andspoiling the physico - chemico properties of thesoil making it unfit for agricultural purposes- Held:such industries cannot be permitted to continueoperation unless they set up pollution controldevices- Such industries liable to compensate forthe past pollution generated by them- Pollution fineof Rs 10,000 imposed on each tannery- Amountcontributed to be deposited in EnvironmentProtection Fund which shall be utilized forcompensating the affected persons and restoringthe ecological balance- environment(Protection)Act, 1986 – Ecology – Damage toCompensation.

C. Ecology- Environment (Protection) Act, 1986 - S.3(3)- Authority under- Directed to be constitutedby Central govt. before 30-9-1996-Authority to beheaded by a retired High Court Judge – Authorityto have all powers necessary to deal with thesituation created by polluting industries –Authorityalso to implement the Precautionary Principle andthe principle of Polluter Pays – Authority tocompute compensation payable for restoring thedamage it caused to the environment- Authority

also to frame a scheme in consultation with expertbodies like NEERI , Central Board and state Boardfor reversing the ecological damage andenvironmental pollution.

D. Constitution of India- Arts 32,226 & 21 – PIL –Ecology- Green Beach Environmental pollutioncaused by tanneries in state of T. N. – suitabledirections issued by Supreme Court – However,instead of itself monitoring the matter any further,Madras High Court advised to constitute a GreenBench to deal with all the environmental matters-such Green Benches already functioning in someother High Courts.

E. International Law – Customary International Law-if not contrary to the municipal law, deemed to beincorporated in domestic law

F. Judicial activism- inaction on the part of the Govt.to set up regulatory/ adjudicatory statutoryauthorities as directed by Act makes it imperativefor the Court to pass suitable necessary directions.

HELD

Though the leather industry is of vital importance tothe country as it generates foreign exchange andprovides employment avenues it has no right to destroythe ecology, degrade the environment and pose health hazards. It cannot be permitted to expand or evento continue with the present productions unless ittackles by itself the problem of pollution created bythe said industry.

The traditional concept that development and ecologyare opposed to each other is no longer acceptable.“Sustainable Development” is the answer. In theinternational sphere, Sustainable Development hascome to be accepted as a viable concept to eradicatepoverty and improve the quality of human life whileliving within the carrying capacity of the supportingecosystems. Sustainable Development as defined bythe Brundtland Report means “Development that meetsthe needs of the present without compromising theability of the future generations to meet their own

VELLORE CITIZEN’S WELFARE FORUM

VERSUS

UNION OF INDIA & OTHERS, PIL 981-97 (India)

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needs.” Sustainable Development as a balancingconcept between ecology and development has beenaccepted as a part of the customary international lawthough its salient features have yet to be finalized bythe international law jurists. (Para 10).

“The Precautionary” and the “Polluter Pays” principlesare essential features of “Sustainable Development."The “Precautionary Principle” – in the context of themunicipal law- means:

i) Environmental measures – by the stateGovernment and the statutory authorities- mustanticipate, prevent and attack the causes ofenvironmental degradation.

ii) Where there are threats of serious and irreversibledamage, lack of scientific certainty should not beused as a reason for postponing measures toprevent environmental degradation.

iii) the “onus of Proof” is on the actor or the developer/industrialist to show that his action isenvironmentally benign.

“The Polluter Pays Principle” has been held to be asound principle. The "Polluter Pays Principle” asinterpreted by the Supreme Court means that theabsolute liability for harm to the environment extendsnot only to compensate the victims of pollution butalso the cost of restoring the environmentaldegradation. Remediation of the damaged environmentis part of a process of “Sustainable Development” andas such the polluter is liable to pay the cost to theindividual sufferers as well as the cost of reversingthe damaged ecology. Apart from the constitutionalmandate to protect and improve the environment, thereis plenty of post-independence legislation on thesubject. In view of the constitutional and statutoryprovisions, it must be held that the PrecautionaryPrinciple and the Polluter Pays Principle are part ofthe environmental law of the country. (Paras 11 to 14)Indian Council for Enviro-Legal Action Vs. Unionof India (19996) 3 SCC 212: JT (19996)2 SC 196,relied on.

Even otherwise, once these principles are accepted, aspart of the customary international law, there wouldbe no difficulty in accepting them as part of thedomestic law. The rules of customary internal lawwhich are not contrary to the municipal law shall bedeemed to have been incorporated in the domestic lawand shall be followed by the courts of law. (Para 15)A.D.M. Vs. Shivakant Shukla, (1976) 2 SCC 521:AIR 1976 SC 1207; Jolly George Varghese Vs. Bank

of Cochin, (1980) 2 SCC 360: AIR 1980 SC 470;Gramophone Co. of India Ltd. Vs. BirendraBahadur Pandaey,(1984) 2 SCC 534: 1984 SCC(Cri) 313: AIR 1984 SC 667, relied on.

The constitutional and statutory provisions protect aperson’s right to fresh air, clean water and pollution –free environment, but the source of the right is theinalienable common law right of clean environment.Our legal system having been founded on the Britishcommon law, the right of a person to freedom frompolluted environment is a part of the basic jurisprudence of the land.

Commentaries on the laws of England of SirWilliam Blackstone Vol. III, Fourth Edn., Publishedin 1876. Chapter XIII, relied on.

The Environment Act contains useful provisions forcontrolling pollution. The main purpose of the Act isto create an authority or authorities under section 3(3)of the Act with adequate powers to control pollutionand protect the environment. It is a pity that to dateno authority has been constituted by the CentralGovernment. The work which is required to be doneby an authority in terms of section 3(3) read with otherprovisions of the Act is being done by the SupremeCourt and other courts in the country. It is high timethat the Central Government realizes its responsibilityand statutory duty to protect the degrading environmentin the country. If the conditions in the five districts ofTamil Nadu, where tanneries are operating,underground waters contaminated, agricultural landsturned barren and residents of the area exposed toserious diseases, it is necessary for theSupreme Court to direct the Central government totake immediate action under the provisions of theEnvironment Act.

There are more than 900 tanneries operating in thefive districts of Tamil Nadu. Some of them may, bynow, have installed the necessary pollution controlmeasures; they have been polluting the environmentfor over a decade and in some cases even for a longerperiod. The Supreme Court has in various ordersindicated that these tanneries are liable to pay pollutionfine. The polluters must compensate the affectedpersons and also pay the cost of restoring the damagedecology.

The Board has the power under the Environment Actand Rules to lay down standards for emissions ordischarge of environmental pollutants. Rule 3(2) ofthe Rules even permits the Boards to specify morestringent standards from those provided under the

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Rules. The NEERI having justified the standardsstipulated by the Board, it is directed that thesestandards are to be maintained by the tanneries andother industries in the state of Tamil Nadu.

However, it is not necessary for the Supreme Court tomonitor these matters any further. The Madras HighCourt would be in a better position to monitor thesematters hereinafter. Therefore, the Chief Justice of theMadras High Court is directed to constitute a SpecialBench- “ Green Bench”- to deal with this case andother environmental matters. However, it would beopen to the bench to pass any appropriate order/orders,keeping in view the directions issued by “ GreenBenches” already functioning in Calcutta, MadhyaPradesh and some other High Courts.

ADVOCATES WHO APPEARED IN THIS CASE

R. Mohan, V.A. Bobde, Kapil Sibal, M.R. Sharma, V.C.Mahajan and S.S. Ray, Senior Advocates( K.R.R. Pillai,M.C. Mehta, Ms Seema Midha, V.G. Pradgassam, VijayPanjwani, S. Sukumaran, Sudhir Walia, Roy Abraham,S.m Baby Krishna, P. Sukumar, Praveen Kumar,Romesh C. Pathak, M.A Krishnamoorthy, V.Krishnamuthi, Ms Anil Katiyar, Ms. Indra Sawhney,Deepak Divan, S.M. Jadhav, A.V. Rangam, ZafarullahKhan, Shahid Rizvi, Shakil Ahmed Syed, Jaideep Guptaand Sanjay Hedge, Advocates, with them) for theappearing parties.

CHRONOLOGICAL LIST OF CASES CITED

1. (1996) 3 SCC 212 : JT (1996) 2 SC 196, IndianCouncil for Nevior –Legal Action v. Union ofIndia 658 g-h

2. (1984) 2 SCC 534 : 1984 SCC (Cri) 313: AIR1984 SC 667, Gramophone Co. of India Ltd. V.Birendra Bahadur Pandey 660e

3. (1976) 2 SCC 521 : AIR 1976 SC 1207, A.D.M.Vs. Shivakani Shukla 660 d-e

THE JUDGMENT OF THE COURT WASDELIVERED BY

KULDIP SINGH, J.- This petition – public interest– under Articles 32 of the Constitution of India hasbeen filed by Vellore Citizens’ Welfare Forum and isdirected against the pollution which is being causedby enormous discharge of untreated effluent by thetanneries and other industries in the state of TamilNadu. It is stated that the tanneries are discharginguntreated effluent into agricultural fields, roadsides,

waterways and open lands. The untreated effluent isfinally discharged in River Palar which is the mainsource of water supply to the residents of the area.According to the petitioner the entire surface,subsoil and water of River Palar has been polluted resulting in non-availability of potable water to the residents of the area.

It is stated that the tanneries in the state of Tamil Naduhave caused environmental degradation in the area.According to the preliminary survey made by theTamil Nadu Agricultural University Research Center,Vellore, nearly 35,000 hectares of agricultural land inthe tanneries belt has become either partially or totallyunfit for cultivation. It has been further stated in thepetition that the tanneries use about 170 types ofchemicals in chrome tanning processes. The saidchemicals include Sodium Chloride, lime, SodiumSulphate, Chromium(sic) Sulphate, fat, liquor,ammonia and Sulphuric acid besides dyes which areused in large quantities. Nearly 35 litres of water isused for processing one kilogram of finished leather,resulting in dangerously enormous quantities of toxiceffluents being let out in the open by tanning industry.These effluents have spoiled the physico-chemicalproperties of the soil and have contaminatedgroundwater by percolation. According to thepetitioner, an independent survey conducted by PeaceMembers, a Non-Governmental Organisation,covering 13 villages of Didingul and Peddiar ChatramAnchayat Unions reveals that 350 wells out of totalof 467 used from drinking and irrigation purposes havebeen polluted. Women and children have to walk milesto get drinking water. Legal Aid and advice Board ofTamil Nadu requested two lawyers namely, M.R.Ramanan and P.S. Subramanium to visit the area andsubmit a report indicating the extent of pollutioncaused by the tanneries. Relevant part of the report isas under:

“As per the Technical Report dated 28-5-1983of the hydrological investigations carried outin Solur village near Ambur, it was noticedthat 176 chemicals including acids werecontained in the tannery effluents. If 40 litresof water with chemicals are required for onekilo of leather, with the production of 200 tonsof leather per day at present and likely to beincreased multifold in the next four to fiveyears with the springing up of more tannerieslike mushroom in and around Ambur town,the magnitude of the effluent water used with

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chemicals and acids let out daily can beshockingly imagined…"

The effluents are let out from the tanneries inthe nearby lands, then to Goodar and Palarrivers. The lands, the rivulet and the riverreceive the effluents containing toxicchemicals and acids. The subsoil water ispolluted ultimately affecting not only arableland used for agriculture but alsodrinking water wells.”

The entire Ambur town and the villages situatednearby do not have good drinking water. Some of theinfluential and rich people are able to get drinkingwater from a far –off pace connected by a few pipes.During rainy days and floods, the chemicals depositedinto the rivers and lands spread out quickly to otherlands. The effluents thus let affect cultivation; eithercrops do not come up at all or if produced, the yield isreduced abnormally too low. The tanners have cometo say the industry is a foreign exchange earner. Butone moot point is whether at the cost of the lives oflakhs of people with increasing human population theactivities of the tanneries should be encouraged onmonetary considerations. We find that the tanners haveabsolutely no regard for the healthy environment inand around their tanneries. The effluents dischargedhave been stored like a pond openly in most of theplaces adjacent to cultivable lands with easy accessfor the animals and the people.

The Ambur Municipality, which can exercise itspowers as per the provisions of the Madras DistrictMunicipalities Act, 1920 (5of 1920) more particularlyunder Sections 226 to 231, 249 to 253 and 338 to 342seems to be a silent spectator. Probably it does notwant to antagonise the highly influential andstupendously rich tanners. The powers given underSection 63 of the Water (Prevention and Control ofPollution) Act, 1974 (6 of 1974) have not beenexercised in the case of tanneries in Ambur and thesurrounding areas.”

2. Along with the affidavit dated 21-7-1992 filed byDeputy Secretary to Government, Environmentand Forests Department of Tamil Nadu, a list ofvillages affected by the tanneries has beenattached. The list mentions 59 villages in the threedivisions of Thirupathur, Vellore and Ranipet.There is acute shortage of drinking water in these59 villages and as such alternative arrangementswere being made by Government for the supplyof drinking water. 3. In the affidavit dated 9-1-1992 filed by Member Secretary, Tamil Nadu

Pollution Control Board (the Board), it has beenstated as under:

“It is submitted that there are 584 tanneriesin North Arcot Ambedkar District videAnnetures ‘A’ and ‘D’, out of which 443tanneries have applied for consent of theBoard. The Government was concerned withthe treatment and disposal of effluent fromtanneries. The Government gave time up to31-7-1985 to tanneries to put up EffluentTreatment Plant (ETP). So far, 33 tanneriesin North Arcot Ambedkar District have putup Effluent Treatment Plants. The Board hasstipulated standards for the effluent to bedisposed of by the tanneries.”

4. The affidavits filed on behalf of the state of TamilNadu and the Board clearly indicate that thetanneries and other polluting industries in the stateof Tamil Nadu have been persuaded for the lastabout 10 years to control the pollution controldevices. The Central Government agreed to givesubstantial subsidy for construction of CommonEffluent Treatment Plants (CETPs). It is a pitythat to date, most of the tanneries operating inthe state of Tamil Nadu have not taken any stepto control the pollution caused by the dischargeof effluent. This Court on 1-5-1995 passed adetailed order. In the said order, this Court noticedvarious earlier orders passed by this Court andfinally directed as under:

“Mr. R. Mohan, the learned Senior Counsel forthe Tamil Nadu Pollution Control Board, hasplaced before us a consolidated statementdividing the 553 industries into three parts. Thefirst part in Statement 1 and the second part inStatement 2 relate to those tanneries who haveset up effluent Treatment Plants eitherindividually or collectively to the satisfactionof the Tamil Nadu Pollution Control Board.According to the report placed on the recordby the Board, these industries instatements 1 and 2 have not achieved thestandard or have not started functioning to thesatisfaction of the Tamil Nadu PollutionControl Board. According to the report placedon the record by the Board, these industries inStatements 1and 2 have not achieved thestandard or have not started functioning to thesatisfaction of the Board. So far as theindustries in Statements 1 and 2 are concerned,we give them three months’ notice from todayto complete the setting up of Effluent Treatment

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Plant (either individually or collectively) failingwhich they shall be liable to pollution fine onthe basis of their past working and also liableto be closed. We direct the Tamil NaduPollution Control Board to issue individualnotices to all these industries within two weeksfrom today. The Board is also directed to issuea general notice on three consecutive days in alocal newspaper, which has circulation in thedistrict concerned.

So far, the 57 tanneries listed in Statement III(including 12 given above) who have filedwrit petition, have not established the Effluent Treatment Plants despite various orders issued by this court from time to time.Mr. R. Mohan, the learned counsel appearing for TamilNadu Pollution Control Board, states that the Board hasissued separate notices to these units directing themto set up Effluent Treatment Plants. Keeping in viewthe fact that this Court has been monitoring the matterfor the last about four years and various orders havebeen issued by this court from time to time, there is nojustification to grant any further time to theseindustries. We therefore, direct the 57 industries listedhereunder to be closed with immediate effect. We directthe District Collector and the Senior Superintendentof Police of the district to have our orders compliedwith immediately. Both these officers shall file a reportin this court within one week of the receipt of the order.

We give opportunity to these 57 industries to approachthis court as and when any steps towards the settingup of Effluent Treatment Plants and theircommissioning have been taken by these industries. Ifany of the industries wish to be relocated to some otherarea, they may come out with a proposal in thatrespect.”

5. On 28-7-1995 this court suspended the closureorder in respect of seven industries mentionedtherein for a period of eight weeks. It was furtherobserved as under:

“Mr. G. Ramaswamy, the learned SeniorAdvocate appearing for some of the tanneriesin Madras, states that the setting up of theEffluent Treatment Plants is progressingsatisfactorily. According to him several lakhshave already been spent and in a short time itwould start operating. Mr. Mohan, the learnedcounsel for the Tamil Nadu Pollution ControlBoard, states that the team of the Board willinspect the project and file a report by 3-8-1995.”

6. This Court on 8-9-1994 passed the followingorder:

“The Tamil nadu pollution Control Board hasfiled its report. List No. 1 relates to about 299industries. It is stated by Mr. G. Ramaswamy,Mr. Kapil Sibal and Mr. G.L Sanghai, thelearned Senior Advocates appearing for theseindustries, that the setting up of the projectsis in progress. According to the learnedcounsel, Tamil Nadu, Leather DevelopmentCorporation (TALCO) is in charge of theproject. The learned counsel state that theproject shall be completed in every respectwithin 3 months from today. The details ofthese industries and the projects undertakenby TALCO as per List No. 1 are as under. Weare of the view that it would be in the interestof justice to give a little more time to theseindustries to complete the project. Althoughthe industries have asked for three months’time, we give them time till 31-12-1995. Wemake it clear that unless the projects arecompleted by that time, the industries shallbe liable to be closed forthwith. Apart fromthat, these industries shall also be liable topollution fine for the past period during whichthey had been operating.

We also take this opportunity to direct TALCO to takefull interest in these projects and have the projectscompleted within the time granted by us.

Mr. Kapil Sibal, the learned counsel appearing for thetanneries, stated that council for Indian FinishedLeather Manufacturers’ Export Association is a bodywhich is collecting 5per cent on all exports. This bodyalso helps the tanneries in various respects. We issuenotice to the Association to be present in this courtand assist this court in all the matters pertaining to theleather tanneries in Madras. Mr. Sampath takes notice.

So far as list No. II is concerned, it relates to about163 tanneries (except M/s Vibgyor Tanners & Co.,Kailasagiri Road, Milttalan –635 811. Ambur(via). ThePollution Control Board has inspected all thesetanneries and placed its report before us. According tothe report, most of these tanneries have not even startedprimary work at the spot. Some of them have not evenlocated the land. The tanneries should have themselvesset up the pollution control devise right at the timewhen they started working. They have not done so.They are not even listening to various orders passedby this court from time to time during the last morethan 2 years. It is on the record that these tanneries are

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polluting the area. Even the water around the areawhere they are operating is not worth drinking. Wegive no further time to these tanneries. We direct allthe following tanneries which are numbering about 162to be closed with immediate effect.”

It may be mentioned that this court suspended theclosure orders in respect of various industries fromtime to time to enable the said industries to install thepollution control devices.

7. This Court by the order dated 20 –10- 1995 directedthe National Environmental Engineering ResearchInstitute, Nagpur (NEERI) to send a team of expertsto examine, in particular, the feasibility of settingup of CETPs for cluster of tanneries situated atdifferent places in the State of Tamil Nadu wherethe work of setting up of the CETPs has not startedand was in progress. NEERI submitted its firstreport on 9-12-1995 and the second report on 12-2-1996. This court examined the two reports andpassed the following order on 9-4-1996:

“Pursuant to this Court’s order dated December15,1995, NEERI has submitted FinalExamination Report dated February 12th, 1996regarding CETPs constructed/ underconstruction by the tanneries in various districtsof the State of Tamil Nadu. A four member teamconstituted by the Director, NEERI inspectedthe CETPs from January 27,th 1996 to February12,1996. According to the report, at present, 30CETP sites have been identified for tanneryclusters in five districts of Tamil Nadu viz, NorthArcot Ambedkar, Erode Periyar, Dindigul Anna,Trichi and Chengai M.G.R. All the 30 CETPswere inspected by the team. According to thereport, only 7 CETPs are under operation, while10 are under construction and 13 are proposed.The following 7 CETPs are under operation:• M/s TALCO Ranipet Tannery Effluent

Treatment Co. Ltd., Ranipet, DistrictNorth Arcot Ambedkar.

• M/s TALCO Ambur Tannery EffluentTreatment Co. Ltd., Thuthipet Secotr,Ambur, district North Arcot Ambedkar.

• M/s TALCO Vaniyambadi Tanners EnviroControl Systems Ltd., Vaniyambadi,District North Arcot.

• M/s Pallavaram Tanners IndustrialEffluent Treatment Co., Chrompet Area,District Chengai MGR.

• M/s Ranipet SIDCO Finished LeatherEffluent Treatment Co. Pvt., Ranipet,District Arcot Ambedkar.

• M/s TALCO Vaniyambadi Tanners EnviroControl Systems Ltd., Udayemdiram,Vaniyambadi, District North ArcotAmbedkar.

• M/s TALCO Pernambut Tannery EffluentTreatment Co., Ltd., Bakkalapalli.,Pernambut, District North ArcotAmbedkar.

The CETPs mentioned at SI. Nos. 5,6 and 7 werecommissioned in January 1996 and were on the dateof report passing through stabilization period. Thereport indicates that so far as the above CETPs areconcerned, although there is improvement in theperformance, they are still not operating at their optimallevel and are not meeting the standards as laid downby the Ministry of Environment and Forests and theTamil Nadu Pollution Control Board for inland surfacewater discharge. The NEERI has given variousrecommendations to be followed by the abovementioned units. We direct the units to comply withthe recommendations of NEERI within two monthsfrom today. The Tamil Nadu Pollution Control Boardshall monitor the directions and have therecommendations of the NEERI complied with. So faras the three units which are under stabilization areconcerned, the NEERI Team may inspect the same andplace a final report before this Court within the periodof two months.

Apart from the tanneries which are connected with theabove mentioned 7 units, there are large number ofother tanneries operating in the 5 districts mentionedabove which have not set up any satisfactory pollutioncontrol devices. Mr. Mohan, the Learned Counsel forthe Tamil Nadu Pollution Control Board, states thatnotices were issued to all those tanneries from time totime directing them to set up the necessary pollutioncontrol devices. It is mandatory for the tanneries to setup the pollution control devices. Despite notices it hasnot been done. This Court has been monitoring thesematters for the last about 4 years. There is noawakening or realization to control the pollution whichis being generated by these tanneries.

The NEERI has indicated the physico-chemicalcharacteristics of ground water from dug wells neartannery clusters. According to the report, water samplesshow that well waters around the tanneries are unfitfor drinking. The report also shows that the quality ofwater in Palar River downstream from the place wherethe effluent is discharged is highly polluted. Wetherefore, direct that all the tanneries in the districtsof North Ambedkar, Erode Periyar, Dindigul Anna,Trichi and Chengai M. G. R. which are not connected

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with the seven CETPs mentioned above, shall be closedwith immediate effect. None of these tanneries shallbe permitted to operate till the time the CETPs areconstructed to the satisfaction of Tamil Nadu PollutionControl Board. We direct the District Magistrate andthe Superintendent of Police of the area concerned, tohave all these tanneries closed with immediate effect.Mr. Mehta has placed on record the report of TamilNadu Pollution Control Board. In Statement I of theIndex, there is a list of 30 industries, which have alsobeen connected with the CETPs.

According to report, these industries have not to dateset up pollution control devices. We direct the closureof these industries also. List is as under. The TamilNadu Pollution Control Board has filed another reportdated January 18, 1996 pertaining to 51 tanneries.There is a dispute regarding the permissible limit ofthe quantity of total dissolved solids (TDS). Since theNEERI Team is visiting these tanneries, they mayexamine the TDS aspect also and advise this Courtaccordingly. Meanwhile, we do not propose to closeany of the tanneries on the ground that it is dischargingmore than 2001 TDS.

The report indicates that except the 17 units, all otherunits are non-complaint units in the sense that theyare not complying with BOD standards. Exceptingthese 17 industries, the remaining 134 tanneries listedhereunder are directed to be closed forthwith. Wedirect the District Magistrate and all the Superintendentof Police of the area concerned to have all thesetanneries mentioned above closed forthwith. Thetanneries in the 5 districts of Tamil Nadu referred to inthis order have been operating for a long time.

Some of the tanneries have been operating for more than two decades. All this period, these tannerieshave been polluting the area. Needless to say that thetotal environment in the area has been polluted. Weissue show-cause notice to these industries throughtheir learned counsel who are present in Court, whythey are be not subjected to heavy pollution fine. Wedirect the State of Tamil Nadu through the IndustryMinistry, the Tamil Nadu Pollution Control Board andall other authorities concerned and also theGovernment of India through the Ministry ofEnvironment and Forests not to permit the setting upof further tanneries in the State of Tamil Nadu.

Copy of this order is communicated to the authoritiesconcerned within three days. There are a large number of tanneries in the State of Tamil Naduwhich have set up individual pollution control

devices and which according to the Tamil NaduPollution Control Board are operating satisfactorily.The fact, however, remains that all these tanneries aredischarging the treated effluents within the factoryprecincts itself. We direct NEERI Team, which isvisiting this area to find out whether the dischargeof the effluent on the land within the factory premisesis permissible environmentally. M/s Nandeem TanningCompany, Valayampet Vaniyambadi is one of suchindustries. Copy of the report submitted by the TamilNadu Pollution Control Board is forwarded to NEERI.NEERI may inspect this industry within ten days andfile a report in this Court. Copy of this order iscommunicated to NEERI.

Matters regarding distilleries in the State of TamilNaduThe Tamil Nadu Pollution Control Board has placedon record the factual report regarding 6 distilleriesmentioned in page 4 of the index of its report datedApril 5, 1996. The learned counsel for the Board statesthat the Board shall issue necessary notices to theseindustries to set up pollution control devices to thesatisfaction of the Board, failing which these distilleriesshall be closed. The Pollution Control Board shall placea status report before this court.

The NEERI submitted two further reports on 1-5-1996and 11-6-1996 in respect of CETPS set up by variousindustries. The NEERI reports indicate that thephysico-chemical characteristics of ground water fromdug wells in Ranipet, Thuthipeth, Valayambattu,Vaniyambadi and various other places do not conformto the limits prescribed for drinking purposes.

8. This Court has been monitoring this petition foralmost five years. The NEERI, Board and theCentral Pollution Control Board (Central Board)have visited the tanning and other industries inthe State of Tamil Nadu several times. Theseexpert bodies have offered all possible assistanceto these industries. The NEERI reports indicatethat even the seven operational CETPs are notfunctioning to its satisfaction. NEERI has madeseveral recommendations to be followed by theoperational CETPs. Out of the 30 CETP sites,which have been identified for tannery clustersin the five districts of North Arcot Ambedkar,Erode Periyar, Dindigul Anna, Trichi and ChengaiM.G.R., 7 are under operation, 10 are underconstruction and 13 are proposed. There are alarge number of tanneries which are not likely tobe connected with any CETP and are required toset up pollution control devices on their own.Despite repeated extensions granted by this Court

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during the last five years and prior to that by theBoard, the tanneries in the State of Tamil Naduhave miserably failed to control the pollutiongenerated by them.

9. It is no doubt correct that the leather industry inIndia has become a major foreign exchange earnerand at present Tamil Nadu is the leading exporterof finished leather accounting for approximately80 per cent of the country’s export. Though theleather industry is of vital importance to thecountry as it generates foreign exchange andprovides employment avenues, it has no right todestroy the ecology, degrade the environment andpose as a health-hazard. It cannot be permitted toexpand or even to continue with the presentproduction unless it tackles by itself the problemof pollution created by the said industry.

10. The traditional concept that development andecology are opposed to each other is no longeracceptable. “Sustainable Development” is theanswer. In the international sphere, “SustainableDevelopment” as a concept came to be knownfor the first time in the Stockholm Declaration of1972. Thereafter, in 1987 the concept was givena definite shape by the World Commission onEnvironment and Development in its report called“Our Common Future.” The Commission waschaired by the then Prime Minister of Norway,Ms G.H. Brundtland and as such, the report ispopularly known as “Brundtland Report.” In 1991the World Conservation Union, UnitedNations Environment Programme and WorldwideFund for Nature, jointly came out with a documentcalled “Caring for the Earth” which is a strategyfor sustainable living. Finally, came the EarthSummit held in June 1992 at Rio which saw thelargest gathering of world leaders ever in thehistory – deliberating and chalking out a blueprintfor the survival of the planet.

Among the tangible achievements of the RioConference was the signing of two conventions,one on biological diversity and another on climatechange. These conventions were signed by 153nations. The delegates also approved by consensusthree non-binding documents namely, a Statementon Forestry Principles, a declaration of principlesof environmental policy and developmentinitiatives and Agenda 21, a programme of actioninto the next century in areas like poverty,population and pollution. During the two decadesfrom Stockholm to Rio “SustainableDevelopment” has come to be accepted as a viable

concept to eradicate poverty and improve thequality of human life while living within thecarrying capacity of the supporting ecosystems.“Sustainable Development” as defined by theBrundtland Report means “Development thatmeets the needs of the present withoutcompromising the ability of future generationsto meet their own needs.” We have no hesitationin holding that “Sustainable Development” as abalancing concept between ecology anddevelopment has been accepted as a part of thecustomary international law though its salientfeatures have yet to be finalized by theinternational law jurists.

11. Some of the salient principles of “SustainableDevelopment,” as culled out from BrundtlandReport and other international documents, areInter-Generational Equity, Use and Conservationof Natural Resources, Environmental Protection,the Precautionary Principle, Polluter PaysPrinciple, Obligation to Assist and Cooperate,Eradication of Poverty and Financial Assistanceto the developing countries. We are, however, ofthe view that “The Precautionary Principle” and“The Polluter Pays Principle” are essentialfeatures of “Sustainable Development.” The“Precautionary Principle” – in the context of themunicipal law – means:

i) Environmental measures – by the StateGovernment and the statutory authorities– must anticipate, prevent and attack thecauses of environmental degradation.

ii) Where there are threats of serious andirreversible damage, lack of scientificcertainty should not be used as a reasonfor postponing measures to preventenvironmental degradation.

iii) The “onus of proof” is on the actor orthe developer/industrialist to show thathis action is environmentally benign.

12. “The Polluter Pays Principle” has been held to bea sound principle by this Court in Indian Councilfor Enviro-Legal Action –Vs- Union of India. TheCourt observed: (SCC p.246 para 65) “…we areof the opinion that any principle evolved in thisbehalf should be simple, practical and suited tothe conditions obtaining in this country.” TheCourt ruled that: (SCC p.246, para 65)

“…once the activity carried on is hazardousor inherently dangerous, the person carryingon such activity is liable to make good the

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loss caused to any other person by his activityirrespective of wether or not he tookreasonable care while carrying on his activity.The rule is premised upon the very nature ofthe activity carried on.”

Consequently the polluting industries are“absolutely liable to compensate for the harmcaused by them to villagers in the affected area,to the soil and to the underground water andhence, they are bound to take all necessarymeasures to remove sludge and other pollutantslying in the affected areas.” The “Polluter Paysprinciple” as interpreted by this Court means thatthe absolute liability for harm to the environmentextends not only to compensate the victims ofpollution but also the cost of restoring theenvironmental degradation. Remediation of thedamaged environment is part of the process of“Sustainable Development” and as such, thepolluter is liable to pay the cost to the individualsufferers as well as the cost of reversing thedamaged ecology.

13. The Precautionary Principle and the Polluter PaysPrinciple have been accepted as part of the lawof the land. Article 21 of the Constitution of Indiaguarantees protection of life and personal liberty.Articles 47, 48-A and 51-A(g) of the Constitutionare as under:

“47. Duty of the State to raise the level ofnutrition and the standard of living and toimprove public health – The state shall regardthe raising of the level of nutrition and thestandard of living of its people and theimprovement of public health as among itsprimary duties and, in particular, the stateshall endeavour to bring about prohibition ofthe consumption except for medicinalpurposes of intoxicating drinks and of drugswhich are injurious to health.48–A. Protection and improvement ofenvironment and safeguarding of forests andwildlife – The State shall endeavour to protectand improve the environment and tosafeguard the forests and wildlife of thecountry.51-A (g) to protect and improve the naturalenvironment including forests, lakes, riversand wildlife and to have compassion for livingcreatures.”

A part from the constitutional mandate to protect andimprove the environment, there are plenty of post-

independence legislations on the subject but morerelevant enactments for our purpose are: the Water(Prevention and Control of Pollution) Act, 1974 (theWater Act), the Air (Prevention and Control ofPollution) Act, 1981 (the Air Act) and the Environment(Protection) Act, 1986(the Environment Act). TheWater Act provides for the constitution of the CentralPollution Control Board by the Central Governmentand the constitution of the State Pollution ControlBoards by various State Governments in the country.The Board functions under the control of theGovernments concerned. The Water Act prohibits theuse of streams and wells for disposal of pollutingmatters. It also provides for restrictions on outlets anddischarge of effluents without obtaining consent fromthe Board. Prosecution and penalties have beenprovided which include sentence of imprisonment.

The Air Act provides that the Central Pollution ControlBoard and the State Pollution Control Boardsconstituted under the Water Act shall also perform thepowers and functions under the Air Act. The mainfunction of the Boards, under the Air Act, is to improvethe quality of the air and to prevent, control and abateair pollution in the country. We shall deal with theEnvironment Act in the latter part of this judgment.

14. In view of the above-mentioned constituted andstatutory provisions, we have no hesitation inholding that the Precautionary Principle and thePolluter Pays principle are part of theenvironmental law of the country.

15. Even otherwise , once these principles are acceptedas part of the Customary International Law therewould be no difficulty in accepting them as partof the domestic law. It is almost an acceptedproposition of law that the rules of CustomaryInternational Law which are not contrary to themunicipal law shall be deemed to have beenincorporated in the domestic law and shall befollowed by the courts of law. In support we mayrefer to Justice H.R. Khanna’s opinion in A.D.M.Vs. Shivakant Shukla, Jolly George Varghesecase and Gramophone Co. case.

16. The constitutional and statutory provisions protecta person’s right to fresh air, clean water andpollution-free environment, but the source of theright is the inalienable common law right of cleanenvironment. It would be useful to quote aparagraph from Blackstone’s commentaries on theLaws of England (Commentaries onthe Laws of England of Sir William Blackstone)Vol. III, fourth edition published in 1876. Chapter

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XIII, “of Nuisance” depicts the law on the subjectin the following words:

“Also, if a person keeps his hogs, or othernoisome animals, or allows filth to accumulateon his premises, so near the house of another,that the stench incommodes him and makes theair unwholesome, this is an injurious nuisance,as it tends to deprive him of the use and benefitof his house. A like injury is, if one’s neighboursets up and exercises any offensive trade: as atanner’s a tallow-chandler’s, or the like; forthough these are lawful and necessary trades,yet they should be exercised in remote places;for the rule is, ‘sic utere tuo, ut alienum nonleadas’; this therefore is an actionable nuisance.And on a similar principle, a constant ringing ofbells in one’s immediate neighbourhood may bea nuisance.

… With regard to other corporeal hereditaments;it is a nuisance to stop or divert water that usedto run to another’s meadow or mill; to corruptor poison a watercourse, by erecting a dye-houseor a lime-pit for the use of trade, in the upperpart of the stream; to pollute a pond from whichanother is entitled to water his cattle; to obstructa drain; or in short to do any act in commonproperty, that in its consequences mustnecessarily tend to the prejudice of one’sneighbour. So closely does the law of Englandenforce that excellent rule of gospel-morality,or ‘doing to others, as we would they should dounto ourselves.”

17.Our legal system having been founded on theBritish common law, the right of a person to apollution-free environment is a part of the basicjurisprudence of the land.

18.The Statement of Objects and Reasons toEnvironment Act, inter alia, states as under:

“The decline in environmental quality has beenevidenced by increasing pollution, loss ofvegetal cover and biological diversity,excessive concentrations of harmful chemicalsin the ambient atmosphere and in food-chains,growing risks of environmental accidents andthreats to life-support systems. The worldcommunity’s resolve to protect and enhance theenvironmental quality found expression in thedecisions taken at the United NationsConference on the Human Environment held

in Stockholm in June 1972. The Governmentof India participated in the Conference andstrongly voiced the environmental concerns.While several measures have been taken forenvironmental protection both before and afterthe Conference, the need for a generallegislation further to implement the decisionof the Conference has become increasinglyevident.

Existing laws generally focus on specific types ofpollution or on specific categories of hazardoussubstances. Some major areas of environmentalhazards are not covered. There also exist uncoveredgaps in areas of major environmental hazards. Thereare inadequate linkages in handling matters ofindustrial and environmental safety, controlmechanisms to guard against slow, insidious build-upof hazardous substances especially new chemicals inthe environment, are weak. Because of a multiplicityof regulatory agencies, there is need for an authoritywhich can assume the lead role for studying, planningand implementing, long-term requirements ofenvironmental safety and to give direction to, andcoordinate a system of speedy and adequate responseto emergency situations threatening the environment.

In view of what has been stated above, there is urgentneed for the enactment of a general legislation onenvironmental protection which, inter alia, shouldenable coordination of activities of the variousregulatory agencies, creation of an authority orauthorities with adequate powers for environmentalprotection, regulation of discharge of environmentalpollutants and handling of hazardous substances,speedy response in the event of accidents threateningthe environment and deterrent punishment to who endangers human environment, safety and health.”

Sections 3, 4, 5, 7 and 8 of the Environment Act whichare relevant are as under:

“3. Power of Central Government to takemeasures to protect and improve environment– (1) Subject to the provisions of this Act,the Central Government shall have the powerto take all such measures as it deemsnecessary or expedient for the purpose ofprotecting and improving the quality of theenvironment and preventing, controlling andabating environmental pollution.

(2) In particular, and without prejudice to thegenerality of the provisions of sub-section (1),

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such measures may include measures withrespect to all or any of the following matters,namely –i) coordination of actions by the State

Governments, officers and otherauthorities (a) under this Act, or the rulesmade thereunder: or (b) under anyother law for the time being in forcewhich is relatable to the objects of thisAct;

ii) planning and execution of a nation-wideprogramme for the prevention, controland abatement of environmentalpollution;

iii) laying down standards for the quality ofenvironment in its various aspects;

iv) laying down standards for emission ordischarge of environmental pollutantsfrom various sources whatsoever;Provided that different standards foremission or discharge may be laid downunder this clause from different sources,having regard to the quality orcomposition of the emission or dischargeof environmental pollutants from suchsources;

v) restrictions of areas in which anyindustries, operations or processes orclass of industries, operations orprocesses shall not be carried out or shallbe carried out subject to certainsafeguards;

vi) laying down procedures and safeguardsfor the prevention of accidents whichmay cause environmental pollution andremedial measures for such accidents;

vii) laying down procedures and safeguardsfor the handling of hazardoussubstances;

viii) examination of such manufacturingprocesses, materials and substances asare likely to cause environmentalpollution;

ix) carrying out and sponsoringinvestigations and research relating toproblems of environmental pollution;

x) inspection of any premises, plant,equipment, machinery, manufacturing orother processes, materials or substancesand giving, by order, of such directionsto such authorities, officers or personsas it may consider necessary to take stepsfor the prevention, control andabatement of environmental pollution;

xi) establishment or recognition ofenvironmental laboratories and institutesto carry out the functions entrusted tosuch environmental laboratories andinstitutes under this Act;

xii) collection and dissemination ofinformation in respect of matters relating to environmental pollution;

xiii) preparation of manuals, codes or guidesrelating to the prevention, control andabatement of environmental pollution;

xiv) such other matters as the CentralGovernment deems necessary orexpedient for the purpose of securing theeffective implementation of theprovision of this Act.

3) The Central Government may, if itconsiders it necessary or expedient so to dofor the purposes of this Act, by order,published in the Official Gazette, constitutean authority or authorities by such name ornames as may be specified in the order forthe purpose of exercising and performingsuch of the powers and functions (includingthe power to issue directions under Section5) of the Central Government under this Actand for taking measures with respect to suchof the matters referred to in sub-section (2)as may be mentioned in the order and subjectto the supervision and control of the CentralGovernment and the provisions of such order,such authority or authorities may exercise thepowers or perform the functions or take themeasures so mentioned in the order as if suchauthority or authorities had been empoweredby this Act to exercise those powers orperform those functions or take suchmeasures.

4. Appointment of officers and their powers andfunctions –

(1) Without prejudice to the provisions of sub-section (3) of section 3, the Central Governmentmay appoint officers with such designations asit thinks fit for the purpose of this Act and mayentrust to them such powers and functionsunder this Act as it may deem fit.

(2) The officers appointed under sub-section (1)shall be subject to the general control anddirection of the Central Government or, if sodirected by that Government, also of the

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authority or authorities, if any, constituted undersub-section (3) of Section 3 or of any otherauthority or officer.

5. Power to give directions – Notwithstandinganything contained in any other law, but subject tothe provisions of this Act, the Central Governmentmay, in the exercise of its powers and performanceof its functions under this Act, issue directions inwriting to any person, officer or any authority andsuch person, officer or authority shall be bound tocomply with such directions.

Explanation. – For the avoidance of doubts, it ishereby declared that the power to issue directionsunder this section includes the power to direct (a)the closure, prohibition or regulation of anyindustry, operation or process; or (b) stoppage orregulation of the supply of electricity or water orany other service.

6. Persons carrying on industry, operation, etc., notto allow emission or discharge of environmentalpollutants in excess of the standards. – No personcarrying on any industry, operation or process shalldischarge or emit or permit to be discharged oremitted any environmental pollutant in excess ofsuch standards as may be prescribed.

7. Persons handling hazardous substances to complywith procedural safeguards – No person shallhandle or cause to be handled any hazardoussubstances except in accordance with suchprocedure and after complying with suchsafeguards as may be prescribed.

Rules 3(1), 3(2) and 5(1) of the Environment(Protection) Rules, 1986 (the Rules) are asunder:“3. Standards for emission or discharge ofenvironmental pollutants. – (1) for the purposesof protecting and improving the quality of theenvironment and preventing and abatingenvironmental pollution, the standards foremission or discharge of environmentalpollutants from the industries, operations orprocesses shall be as specified in Schedules Ito IV.

3. (2) Notwithstanding anything contained in sub-rule(1), the Central Board or a State Board may specifymore stringent standards from those provided inSchedules I to IV in respect of any specific industry,operation or process depending upon the quality ofthe recipient system and after recording, depending

upon the quality of the recipient system and afterrecording reasons therefor in writing.

4. Prohibition and restriction on the location ofindustries and the carrying on or process andoperations in different areas – (1) The CentralGovernment may take into consideration thefollowing factors while prohibiting orrestricting the location of industries andcarrying on of processes and operations indifferent areas:

i) Standards for quality of environment in itsvarious aspects laid down for an area;

ii) The maximum allowable limits ofconcentration of various environmentalpollutants (including noise) for an area;

iii) The likely emission or discharge ofenvironmental pollutants from an industry,process or operation proposed to beprohibited or restricted;

iv) The topographic and climatic features ofan area;

v) The biological diversity of the area which,in the opinion of the Central Governmentneeds to be preserved;

vi) Environmentally compatible land use;vii) Net adverse environmental impact likely

to be caused by an industry, process oroperation proposed to be prohibited orrestricted;

viii) Proximity to a protected area under theAncient Monuments and ArchaeologicalSites and Remains Act, 1958 or a sanctuary,National Park, game reserve or closed areanotified as such under the Wild Life(Protection) Act, 1972 or places protectedunder any treaty, agreement or conventionwith any other country or countries or inpursuance of any decision made in anyinternational conference, association orother body;

ix) Proximity to human settlements; andx) Any other factor as may be considered by

the Central Government to be relevant tothe protection of the environment in anarea.

20. It is thus obvious that the Environment Actcontains useful provisions for controllingpollution. The main purpose of the Act is to createan authority or authorities under Section 3(3) ofthe Act with adequate powers to control pollutionand protect the environment. It is a pity that todate no authority has been constituted by the

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Central Government. The work which is requiredto be done by an authority in terms of Section3(3) read with other provisions of the Act is beingdone by this Court and the other courts in thecountry. It is high time that the CentralGovernment realises its responsibility andstatutory duty to prevent environmentaldegradation in the country. If the conditions inthe five districts of Tamil Nadu, where tanneriesare operating, are permitted to continue, then inthe near future, all rivers/canals shall be polluted,underground waters contaminated, agriculturallands turned barren and the residents of the areaexposed to serious diseases. It is, therefore,necessary for this Court to direct the CentralGovernment to take immediate action under theprovision of the Environment Act.

21. There are more than 900 tanneries operating inthe five districts of Tamil Nadu. Some of themmay, by now, have installed the necessarypollution control measures; they have beenpolluting the environment for over a decade andin some cases even for a longer period. This Courthas in various orders indicated that these tanneriesare liable to pay pollution fine. The polluters mustcompensate the affected persons and also pay thecost of restoring the damaged ecology.

22. Mr. M.C. Mehta, the learned Counsel for thepetitioner has invited our attention to thenotification GOMs. No. 213 dated 30-3-1989which reads as under:

“In the government order first read above, theGovernment have ordered, among otherthings, that no industry causing serious waterpollution should be permitted within onekilometer from the embankments of rivers,streams, dams, etc. and that the Tamil NaduPollution Control Board should furnish a listof such industries to all local bodies. It hasbeen suggested that it is necessary to have asharper definition for water sources so thatephemeral water collections like rainwaterponds, drains, sewerage (biodegradable) etc.may be excluded from the purview of the aboveorder. The Chairman, Tamil Nadu PollutionBoard has stated that the scope of thegovernment order may be restricted toreservoirs, rivers and public drinking-watersources. He has also stated that there shouldbe a complete ban on location of highlypolluting industries within 1 kilometer ofcertain water sources.

2. The Government has carefully examined heabove suggestions. The Government imposea total ban on the setting up of the highlypolluting industries mentioned in Annexture1 to this order within one kilometer from theembankments of the water sources mentionedin Annexture II to this order.

3. The Government also direct that under anycircumstances, if any highly polluting industryis proposed to be set up within one kilometerfrom the embarkments of the water sourcesother than those mentioned in Annexture II tothis order, the Tamil Nadu Pollution ControlBoard should examine the case and obtain theapproval of the Government for it.”

Annexture 1 to the notification includes distilleries,tanneries, fertilizer, steel plants and foundries as thehighly polluting industries. We have our doubtswhether the above-quoted government order is beingenforced by the Tamil Nadu Government. The orderhas been issued to control pollution and protect theenvironment. We are of the view that the order shouldbe strictly enforced and no industry listed in Annexture1 to the order should be permitted to be set up in theprohibited area.

23. The learned counsel for the tanneries raised anobjection that the standard regarding totaldissolved solids (TDs) fixed by the Board wasnot justified. This court by the order dated 9-4-1996 directed the NEERI to examine this aspectand give its opinion. In this report dated 11-6-1996 NEERI has justified the standards stipulatedby the Board. The reasoning of the NEERI givenin its report dated 11-6-1996 is as under:

“The total dissolved solids in ambient waterhave physiological, industrial and economicsignificance. The consumer’s acceptance ofmineralized water decreased in directproportion to increased mineralization asindicated by Bruvold (1). High total dissolvedsolids (TDs), including chlorides andsulphates, are objectionable due to possiblephysiological effects and mineral taste thatthey impart to water. High levels of totaldissolved solids produce laxative/cathartic/purgative effect in consumers. The requirementof soap and other detergents in household andindustry is directly related to water hardnessas brought out by De Boer and Larsen (2).High concentration of mineral salts,particularly sulphates and chlorides, are also

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associated with costly corrosion damage inwastewater treatment systems, as detailed byPatterson and Banker (3). Of particularimportance is the tendency of scale depositswith high TDS thereby resulting in high fuelconsumption in boilers.

The Ministry of Environment and Forests (MEF) hasnot categorically laid down standards for inland surfacewater discharge for total dissolved solids (TDS),sulphates and chlorides. The decision on thesestandards rests with the respective State PollutionControl Boards as per the requirements based on localsite conditions. The standards stipulated by the TNPCBare justified on the afore-referred considerations.

The prescribed standards of the TNPCB for inlandsurface, water discharge can be met for tannerywastewater’s cost effectively through proper implantcontrol measures in tanning operation, and rationallydesigned and effectively operated wastewatertreatment plants (ETPs) and (CETPs). Tables 3 and 5depict the quality of ground water in some areas aroundtanneries during peak summer period (3-6-1996 to 5-6-1996). Table 8 presents the data collected by TNPCBat individual ETPs indicating that TDS, sulphates andchloride concentrations are below the prescribedstandards for inland surface water discharge. Thequality of ambient waters needs to be maintainedthrough the standards stipulated by TNPCB.”

24. The Board has the power under the EnvironmentAct and the Rules to lay down standards foremissions or discharge of environmentalpollutants. Rule 3(2) of the Rules even permitsthe Board to specify more stringent standards fromthose provided under the Rules. The NEERIhaving justified the standards stipulated by theBoard, we direct that these standards are to bemaintained by the tanneries and other industriesin the State of Tamil Nadu.

25. Keeping in view the scenario discussed by us inthis judgment, we order and direct as under:

a) The Central Government shall constitutean authority under Section 3(3) of theEnvironment (Protection) Act, 1986 andshall confer on the said authority all thepowers necessary to deal with thesituation created by the tanneries andother polluting industries in the State ofTamil Nadu. The authority shall beheaded by a retired judge of the HighCourt and it may have other members –

preferably with expertise in the field ofpollution control and environmentprotection – to be appointed by theCentral Government. The CentralGovernment shall confer on the saidauthority the powers to issue directionunder Section 5 of the Environment Actand for taking measures with respect tothe matters referred to in clauses (v), (vi),(vii), (viii), (ix), (x) and (xii) of sub-section (2) of Section 3. The CentralGovernment shall constitute the authoritybefore September 30th, 1996.

b) The authority so constituted by theCentral Government shall implement the“Precautionary Principle” and the“Polluter Pays principle”. The authorityshall, with the help of expert opinion andafter giving opportunity to the pollutersconcerned assess the loss to the ecology/environment in the affected areas andshall also identify the individuals/familieswho have suffered because of thepollution and shall assess thecompensation to be paid to the saidindividual/families. The authority shallfurther determine the compensation to berecovered from the polluters as cost ofreversing the damaged environment. Theauthority shall lay down just and fairprocedure for completing the exercise.

c) The authority shall compute thecompensation under two heads namely,for reversing the ecology and for paymentto individuals. A statement showing thetotal amount to be recovered, the namesof the polluters from whom the amountis to be recovered, the amount to berecovered from each polluter, the personswhom the compensation is to be paid andthe amount payable to each of them shallbe forwarded to the Collectors/DistrictMagistrates of the area concerned. TheCollector/District Magistrates shallrecover the amount from the polluters, ifnecessary, as arrears of land revenue. Heshall disburse the compensation awardedby the authority to the affected persons/families.

d) The authority shall direct the closure ofthe industry owned/managed by a polluterin case he evades or refuses to pay thecompensation awarded against him. Thisshall be in addition to the recovery fromhim as arrears of land revenue.

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e) An industry may have set up thenecessary pollution, control device atpresent but it shall be liable to pay forthe past pollution generated by the saidindustry which has resulted in theenvironmental degradation and sufferingto the resident of the area.

f) We impose pollution fine of Rs 10,000each on all the tanneries in the districtsof North Arcot, Ambedkar, Erode Periyar,Dindigul Anna, Trichi and ChorgaiM.G.R. The fine shall be paid beforeOctober 31st,1996 in the office of theCollector/District Magistrate concerned.We direct the collector/districtmagistrates of these districts to recoverthe fines from the tanneries. The moneyshall be deposited, along with thecompensation amount recovered from thepolluters under a separate head called“Environment Protection Fund” and shallbe utilized for compensating the affectedperson as identified by the authorities andalso for restoring the damagedenvironment. The pollution fine is liableto be recovered as arrears of land revenue.The tanneries which fail to deposit theamount by October 31, 1996 shall beclosed forthwith and shall also be liableunder the contempt of Courts Act, 1971.

g) The authority, in consultation with expertbodies like NEERI, Central Board, shall frame scheme/schemes for reversingthe damage caused to the ecology andenvironment by pollution in the State ofTamil Nadu. The scheme/schemes soframed shall be executed by the StateGovernment under the supervision of theCentral Government. The expenditureshall be met from the “EnvironmentProtection Fund” and from other sourcesprovided by the State Government and theCentral Government.

h) We suspend the closure orders in respectof all the tanneries in the five districts ofNorth Arcot, Amedkar, Erode Periyar,Dindigul Anna, Trichi and ChengaiM.G.R. We direct all the tanneries in theabove five districts to set up CETPs ofIndividual Pollution Control Devices onor before 30, 1996. Those connected withCETPs shall have to install in additionthe primary devices in the tanneries. Allthe tanneries in the above five districtsshall obtain the consent of the Board to

function and operate with effect fromDecember 15,1996. The tanneries that arerefused consent or who fail to obtain theconsent of the Board by December 15,1996 shall be closed forthwith.

i) We direct the Superintendent of Policeand the Collector/District Magistrate/Deputy Commissioner of the districtconcerned to close all those tanneries withimmediate effect who fail to obtain theconsent from the Board by the said date.Such tanneries shall not be reopenedunless the authority permits them to doso. It would be open to the authority toclose such tanneries permanently or todirect their relocation.

j) Government Order No. 213 dated March30th, 1989 shall be enforced forthwith. Nonew industry listed in Annexture 1 to thenotification shall be permited to be setup within the prohibited area. Theauthority shall review the cases of all theindustries which are already operating inthe prohibited area and it would be opento the authority to direct the relocation ofany of such industries.

k) The standards stipulated by the Boardregarding total dissolved solids (TDS andapproved by the NEERI shall beoperative. All the tanneries and otherindustries in the State of Tamil Nadu shallcomply with the said standards. Thequality of ambient waters has to bemaintained through the standardsstipulated by the Board.

26. We have issued comprehensive directions forachieving the end result in this case. It is notnecessary for this Court to monitor these mattersany further. We are of the view that the MadrasHigh Court would be in a better position to monitorthese matters hereinafter. We, therefore, requestthe Chief Justice of the Madras High Court toconstitute a Special Bench, “Green Bench” to dealwith this case and other environmental matters.We make it clear that it would be open to the Benchto pass any appropriate order/orders keeping inview the directions issued by us. We may mentionthat “Green Benches” are already functioning inCalcutta, Madhya Pradesh and some other HighCourts. We direct the Registry of this Court to sendthe records to the Registry of the Madras HighCourt within one week. The High Court shall treatthis matter as a petition under Article 226 of theConstitution of India and deal with it in accordancewith law and also in terms of the directions issued

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by us. We give liberty to the parties to approachthe High Court as and when necessary.

27. Mr. M.C. Mehta has been assisting this Court toour utmost satisfaction. We place on record ourappreciation for Mr. Mehta. We direct the State ofTamil Nadu to pay Rs 50,000 towards legal feesand other out of pocket expenses incurred by Mr.Mehta.

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VAN HUYSSTEEN AND OTHERS

VERSUS

MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISMAND OTHERS

Case No 6570/95

SA 283 (C) Cape Provincial Division (Far Lam, J. ) June 15th 1995 (S.Africa)

F1YNOTE: SLEUTELWOORDE

Constitutional law, human rights Protection ofFundamental rights in terms of chap. 3 of Constitutionof the Republic of South Africa, Act 200 of 1993;Persons who may claim relief;Claim by ‘person actingin his or her own interest’ in s 7(4)(b)(i); Words ‘owninterest’ wide enough to cover an interest as trustee.

Constitutional law, Human rights, Right of access toState information in terms of s 23 in chap. 3 ofConstitution of the Republic of South Africa Act 200of 1993. Section 24(b) must be generously interpreted,does not merely codify existing law of natural justice;latter not confined to audi alteram partem and nemojudex in sua causa rules. Test of procedurally fairadministrative action under s 24(b) is whetherprinciples and procedures were followed which inparticular situation were right, just and fair.Procedurally unfair to owner of nearby residential landfor application under Land Use Planning Ordinance 15of 19.58(C) for rezoning of farmland as industrial landto be decided before completion of investigation byboard of enquiry appointed under S. 15(I) ofEnvironmental Conservation Act 73 of 1989 intoproposal to build steel mill on the land to be rezonedOwner entitled to interdict against provincialfunctionaries from deciding rezoning applicationpending finalization of enquiry by board.

Environmental law - Environmental policy -compliance in terms of S.3 of EnvironmentalConservation Act 73 of 1989 with policy determinedunder S.2 - Effect on provincial administrationfunctionaries considering rezoning application underLand Use Planning Ordinance 15 of 1985 (C) -Functionaries obliged to exercise powers in accordancewith policy determined under s 2 of Act.

Environmental law - Board of investigation in termsof s 15 of Environmental Conservation Act 73 of 1989,Minister cannot be compelled to appoint board of

investigation in terms of s 15(I). Likewise cannot becompelled to amend or amplify an appointed board’sterms of reference.

Environmental law, Board of investigation in terms ofs 15 of Environmental Conservation Act 73 of 1989.Investigation by board under that section markedlysuperior to a provincial departmental enquiry becauseof advantages of evidence under oath, interrogation,publicity and right to subpoena.

HEADNOTE: KOPAOTA

“Section 15 (1) of the Environmental Conservation Act73 of 1989 empowers but does not oblige the Ministerof Environmental Affairs to appoint a board of enquiryto assist him in evaluating a proposed development,and consequently, no one can compel him to do so. Itfollows too that, where a board has been appointed,no one has the right to demand the amplification oramendment of its terms of reference.

Any Minister or official charged with making arezoning decision under the Land Use PlanningOrdinance 15 of 1985 (C) is obliged, by s 3 of theEnvironmental Conservation Act 73 of 1989, toexercise the powers conferred on him by the ordinancein accordance with the policy determined under s 2 ofthat Act.

By reasons of s 24 (b) of the Constitution of theRepublic of South Africa Act 200 of 1993, anyonewhose rights will be affected by a rezoning decisionhas the right to procedural fairness in respect of suchdecision. That section does not merely codify thecommon law relating to natural justice which in anyevent is not limited to the audi alteram panem andnemo iudex in sua causa rules.

A party entitled to procedural fairness, as contemplatedin s 24 (b) of the Constitution is entitled to ‘theprinciples and procedures ... which, in any particular

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situation or set of circumstances are right and just andfair’ (as stated by Lord Morris of Bortb-y-Gesa inWiseman v. Borneman [1971) AC 297 (In.) at 3088-3098 (1969) 3 All ER 271S at 278(E). Even if thatstatement does not correctly reflect the South Africancommon law, then it is nonetheless the correct test toapply under s 24(b) of the Constitution where the words‘the right to procedurally fair administrative action’must be generously interpreted and austerity oftabulated legalism must be avoided.

An investigation by a board of enquiry appointed unders 15(I) of the Environmental Conservation Act of 1989is markedly superior to a departmental investigationby a provincial administration in relation to a rezoningapplication because of the advantages it has inattempting to arrive at the truth in regard to disputedfacts and to differing expert opinions, namelytestimony on oath, interrogation, publicity and the rightto subpoena any person who in its opinion may givematerial information and/or who may produce anybook, document or thing which may have a bearing onthe subject of the investigation, to give evidence andcan be interrogated and/or to produce the book,document or thing.

The sixth and seventh respondents proposed to builda steel mill on portion of a farm at Saldanha, near theWest Coast National Park and the Langebaan Lagoon,and had applied to the Provincial Administration ofthe Western Cape for the rezoning of the land underthe Land Use Planning Ordinance 15 of 1985 (C). Thelagoon’s wetlands were protected in terms of theConvention on Wetlands of International Importanceto which South Africa was a contracting party. Erf 2121Langebaan was situated opposite the lagoon and wasowned by the W Trust, the trustees of which were thefirst three applicants. The first applicant was joined asfourth applicant in his personal capacity as one of thetrust beneficiaries. The trustees intended to build aholiday home or a permanent home on the trustproperty. Expert opinion was divided on whether theproposed mill would be environmentally undesirable.The applicants applied in a Provincial Division as amatter of urgency, for a rule nisi ordered (a) the firstrespondent (i) to make available, in terms of s 23 ofthe Constitution, copies of all documents in hispossession relevant to the proposed will (ii) to appointa board of in terms of s 151(1) of the EnvironmentalConservation Act 1989 to assist him in the evaluationof proposed mill of certain specified related issues;(b) ordering the second and third respondents (thePremier of the Western Cape Province and the Ministerof Agriculture, Planning and Tourism of that province)

to hold in abeyance the rezoning decision, pending thefinalization of the enquiry under 15(1), the latter orderto operate as an interim interdict pending the returnday of the rule nisi. Before the hearing, therespondent appointed a board of investigation under s15(1) and offered without admitting that he was obligedto do so, to make the relevant documents available tothe applicants. The applicants, accordingly did notpursue the order sought in (a) (I) and (ii) above but didask for an order calling on the first respondent to amendand/or amplify the B card’s terms of reference. Thefirst respondent resisted the latter and furthercontended that the applicants had not been entitled tothe documents they had sought. The second, third, sixthand seventh respondents opposed the order sought in(b) above.

Held, that the applicants had no right to compel thefirst respondent to appoint a board of enquiry under s15(I) of the Environmental Conservation Act 1989 andtherefore no right to an order compelling him toamplify or amend the board’s terms of reference.Accordingly, the applications for the order on him toappoint a board and to amend and/or amplify the termsof reference of the board which he did appoint weredismissed with costs.

Held, further, that, applying the interpretation of s 23of the Constitution laid down in Nonie and Another v.Attorney-General, Cape, and Another 1995 (2) SA 460(C) (1995) (1) SACR 446 (C), the applicants didreasonably require the document sought for the purposeof protecting their rights to the trust property whichwas potentially threatened by the proposed mill in orderto exercise their rights to object to the re-zoning.Accordingly, the first respondent was ordered to paythe applicant’s costs of the application seeking the saiddocuments.

Held, further, in regard to the application for an orderinterdicting the second’ and third respondents frommaking a decision on the rezoning application pendingthe finalization of the board’s investigation, that thewords in his or her own interest in s 7(4)(b)(i) of theConstitution were wide enough to cover an interest asa trustee and the first three applicants accordingly hadlocus standi as their rights in respect of the trustproperty would be threatened if second and thirdrespondents decided the rezoning application in favourof sixth and seventh respondents before the fomalisationof the board’s investigation; for the trust propertyclearly had value as the potential site of a holiday homeand the Court could take judicial notice of the factthat sites for holiday homes would be more valuable

234

if they were in close proximity to beautiful unspoiltnatural areas and less valuable if such areas werepolluted or otherwise detrimentally affected.

Held, further, in regard to the interdict sought that s 3of the Environmental Conservation Act 1989 obligedfunctionaries charged with the duty of deciding onrezoning applications under the Land Use PlanningOrdinance 15 of 1985 (C) to exercise their powers inaccordance with the policy determined under s 2 ofthe Act and that s 24(b) of the Constitution entitledthem to procedural fairness in respect of such rezoningdecision. Accordingly, the applicants had a rightprotectable by interdict.

Held, further, that it would be an infringement of theapplicant’s rights to procedural fairness if theprovincial administration’s functionaries decided therezoning application before the board’s enquiry hadbeen completed because an investigation by the boardof enquiry would be markedly superior to that whichthose functionaries could make, by reason of the veryconsiderable advantages of testimony on oath,interrogation, publicity, and the right to subpoenawitnesses, which the board alone had.

Held, further, that the applicants would sufferirreparable harm if the functionaries so decidedbecause, although their decision could be taken onreview, review was a discretionary remedy and theremight be factors which could induce the Court to refusean order which might necessitate the demolition of anexpensive steel mill: furthermore, that damages wouldnot be an adequate alternative remedy because theywould be extremely difficult to quantity.

Held, further, that, insofar as it was relevant, thebalance of convenience or fairness favoured thegranting of an interdict and that the Court shouldexercise its discretion in favour of the applicants. (At31OC-D.) Interdict accordingly granted to applicantswith costs, with leave reserved to second and thirdrespondents to set the matter down for argument as towhether the order should be uplifted on the groundthat the finalisation of the board’s decision was beingunduly delayed. The following decided cases werecited in the judgment:

• Re Davis (1947) 1"5 CLR 409

• Harnischfeger Corporation and another vAppleton and another 1993 (4) SA 479 (W)

• Jacobs en ‘n Ander v. Waks en Andere 1992 (l)SA 521 (A)

• Marlin v. Durban Turf Club and Others 1942 AD112

• Minister of Home Affairs and Another v CollinsMacDonald Fisher and Another (1980) AC 319(PC) (1979) 3 All ER at 21.

• Nonie and Another v. Attorney-General Cape andAnother 1995 (2) SA 460 (C) (1995 (1) SACR446)

• R v. Big M Drug Mart Ltd. (1985) 18 DLR (4th)321

• Russel v. Duke of Norfolk and Others (1949) 1All ER 109 (CA)

• S v. Leepile and Others (I) 1986 (2) SA 333 (W)

• S v. Makwanyane and Another 1995 (3) SA 391(CC) (1995 (2) SACR 1)

• S v. Zuma and Others 1995 (2) SA 642 (CC) (1995(1) SACR 56)

• Sutter v. Scheepers 1932 AD 165

• Turnery v.Jockey Club of South Africa 1974 (3) SA633 (A)

• Wiseman v. Borneman (1971) AC 297 (HL)(1969) 3 All ER 275.

CASE INFORMATION

Application for a mandamus and an interdict. The factsappear from the reasons for judgement.

D P de Villiers QC (with him T D Potgieter) for theapplicants.

G D van Schalkwyk SC (with him R C Hiemstra) forthe first, second and third respondents.

M Helberg SC for the sixth and seventh respondents.

No appearance for the 4th, 5

th, 8

th and 9

th respondents.

Cur adv vult.

Postea (June 28).

235

JUDGEMENT

Farmland JOn 26 May 1995 Messrs. A M van Huyssteen, H PVenter and J D Coetzee, in their capacities as trusteesfor the time being of the Witterdrift Trust institutedproceedings by notice of motion against therespondents listed.

1) The Minister of Environmental Affairs and Tourismof the National- Government as first respondent;

2) The Premier of the Western Cape Province, assecond respondent;

3) The Minister of Agriculture, Planning and Tourism,Western Cape, as third respondent;

4) The Interim Counci1 of the West Coast Peninsula(Vredenburg, Saldanha, St Helena Bay andPaternoster), as, fourth respondent;

5) The Municipality of Langebaan as fifth respondent;

6) Iscor Ltd. as sixth respondent;

7) Saldanha Steel (Pty) Ltd (a subsidiary of sixth reRespondent) as seventh respondent; and

8) The National Board as eighth respondent.

Subsequently, the Minister of Finance, Nature andEnvironmental Affairs, Western Cape, was joined asninth respondent. During the course of the argument, Iordered that Mr. Van Huyssteen, in his personalcapacity be joined as fourth applicant.

In the original notice of motion, first, second and thirdapplicants sought, as a matter of urgency, orders in thefollowing terms:

(a) A rule nisi in terms whereof:

i) First respondent was to be ordered to make availableto the applicants, in terms of s 2.3 of theConstitution of the Republic of South Africa, Act200 of 1993 copies of all documentation in hispossession relevant to the proposed steel factory atVredenburg-Saldanha, including all thecorrespondence, inter-office and inter departmentalmemoranda minutes of meetings and discussions,notes, impact studies, reports and disclosures ofinterest by any person(s) involved in the decisiontaking process with reference to the proposed

development of a steel factory by sixth or seventhrespondent at Vredenburg-Saldanha;

ii) first respondent was to be ordered to appoint a boardof enquiry in terms of s 15( I) of the EnvironmentalConservation Act 73 of 1989 in order to assist himin the evaluation of:• The proposed development of a steel

factory by sixth respondent or seventhrespondent at Vredenburg-Saldanha;

• The probable secondary industrialdevelopment resulting therefrom shouldit proceed;

• The probable development of theSaldanha Bay harbour and/or quayand in the surrounding bay resultingtherefrom should it proceed; and

• The probable impact of the foregoing onthe environment and in particular, theLangebaan Lagoon the West CoastNational Park and the surroundingenvironment as also the eco-systemwhich is thereby supported and housed;

iii) second and third respondents were to be orderedto hold in abeyance the rezoning decision withregard to the land on which it is proposed that theabove mentioned development will take place,pending the finalisation of the above mentionedenquiry in terms of s 15( 1) of the EnvironmentalConservation Act 73 of 1989.

iv) first respondent was to be ordered to pay the costsof the application; and

v) second and third respondents were to be ordered topay the costs of the application, jointly andseverally with first applicant only should theyoppose it.

(b) An interim interdict in terms of (a) ( iii) abovepending the return day of the rule nisi-sought: and

(c) Further and/or alternative relief on the basis thatno relief was to be sought against any party exceptfirst, second and third respondents if such party didnot oppose the application.

In amplification of the last paragraph it was stated inthe notice of motion that the respondents, apart fromfirst, second and third respondents, were only joinedin so far as it might be necessary because of theirinterest in the proposed steel development atVredenburg-Saldanha, but that a costs order would be

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sought against any of these other respondents shouldthey oppose the application.

Fourth, fifth and eighth respondents do not opposerelief sought and abide by the judgment of the Court.Ninth respondent has not given notice of his intentionto oppose the application and he has not participatedin any way in the proceedings.

On 7 June 1995, first respondent appointed a board ofinvestigation in terms of s 15(1) of the EnvironmentalConservation Act 73 of 1989 to consider and reporton the environmental consequences of the proposedsteel mill development at Saldanha.

On 8 June 1995, in an affidavit filed on his behalf,first respondent offered without admitting that he wasobliged to do so, to make available to the applicantsthe relevant documents, subject to suitablearrangements.

The applicants no longer seek a rule nisi and an interiminterdict pending the return day inasmuch as thoserespondents who oppose the application have had theopportunity to the affidavits in support of theiropposition.

In view of the fact that the ninth respondent has appointeda board of investigation under s 15(1) of Act 73 of1989 and has made the relevant documentationavailable to them, the applicants no longer seek therelief summarized in para (a)(i) and (ii) above. Theypersist, however, in asking for an order interdictingsecond and third respondents from proceeding withthe rezoning application until after the board appointedby the first respondent has held its investigation andreported thereon. They contend in this regard that ifsecond and third respondents were in the circumstancesof this case to decide the rezoning application beforethe finalisation of the board’s investigation, this wouldamount to an infringement of their right to procedurallyfair administrative action which is entrenched in s 24(b)of the Constitution.

They also ask for an order calling upon first respondentto amend and/or amplify in certain respects the termsof reference of the board of investigation appointedby him.

First respondent opposes the relief sought against himand contends:

i) That applicants are not entitled to an order in respectof the documents because they do not at this stageintend to exercise or protect any of their rights;

ii) That the applicants were not entitled to an ordercompelling him to appoint a board of investigationbecause the provisions of s l5 (I) of Act 73 of 1989are directory and/or empowering and notperemptory; and

iii) that they are accordingly not entitled to an orderinterdicting them from taking the relevant rezoningdecision pending the finalisation of theinvestigation to be conducted by the boardappointed by first respondent. They contend thatapplicants have no right to have the rezoningdecision held in abeyance until the board hasconducted its investigation and made its findingsand/or recommendations because so it is contentedthere is no obligation on second or third respondentto take such findings or recommendations intoaccount before making a decision on the rezoningapplication and in the circumstances of this case, itcannot be said that there will be any proceduralunfairness if the rezoning decision is made beforethe board has completed its work.

They contend further that applicants have no well-grounded apprehension of irreparable harm if theinterim relief is not granted and that, in any event,applicants have not shown, on the assumption that theinterdict sought is of a temporary nature, that thebalance of convenience is in their favour. In this latterregard, they contend that applicants have not made outa case that it will be legally impossible for them toenforce, by way of review, the rights to which they layclaim.

Sixth and seventh respondents oppose the interdictsought against second and third respondents (it beingcommon cause that the granting of such an interdictwould adversely affect sixth and seventh respondents)on the following grounds:

(a) That the order sought amounts to a final interdictwhich should not be granted because:i) Applicants do not have the necessary locus

standi;ii) They have not shown that they have any

right, which is being infringed;iii) Even if they have shown such a right, they

have not shown any infringement thereof:and

iv) Even if they have shown all the aforegoing,they have an alternative remedy;

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(b) Alternatively, if the interdict sought is in essence atemporary interdict, then the application should failbecause:

i) They have shown no prima facie right;ii) They have failed to indicate any possibility

of irreparable harm;iii) They have failed to prove that the balance

of fairness is in their favour; andiv) even if they have shown all the aforegoing,

the Court in the exercise of its discretionshould still refuse to grant an interdict inthis case.

In the following paragraphs, I shall endeavor to set outsome of the facts which are common cause betweenthe parties.

Sixth respondent intends erecting a steel mill, whichwill occupy an area of between 40-80 hectares onportions of the farm Yzervarkensrug at Saldanha. Theland in question is near the West Coast National Parkand the Langebaan Lagoon. In terms of the Conventionon Wetlands of International Importance especially asWaterfowl Habitat (Ramsar 1971), to which SouthAfrica is a contracting party, South Africa hasundertaken to protect, inter alia, the wetlands of theLangebaan Lagoon which are part of a sensitive eco-system of international importance.

Erf 2121, Langebaan (to which I shall hereinafter referas ‘the trust property’) is registered in the name of thetrustees for the time being of the Witterdrift Trust ofwhich as I have said the first three applicants are thetrustees for the time being. Mr. Van Huyssteeen in hispersonal capacity is one of the beneficiaries of the trust.The intention of the trustees is eventually to build aholiday home or a permanent home on the trustproperty, which is situated at Meeuklip, Langebaan,right opposite the lagoon.

Sixth respondent has applied to the ProvincialAdministration of the Western Cape in terms of theprovisions of the Land Use Planning. Ordinance 15 of1985 (C) for the rezoning of the land so that a steelmill may be erected. A difference of opinion has arisenbetween experts as to whether the steel milldevelopment is desirable in all the circumstances.Some experts support the proposed development whileothers are opposed to the proposed development at thisstage and have expressed the view that not enough investigation has been done for a decision to be taken as to whether the proposed development should be allowed to proceed.

Included in the papers are an evaluation of a CSIR

environmental impact study on the proposed steel millproject which was drawn up by the Council for theEnvironment at the request of first respondent andcomments on the CSIR environmental impact studyprepared by Dr P A Cook, a senior lecturer in Zoologyat the University of Cape Town, who is the chairmanof the Mariculture Association of Southern Africa,an internationally recognized authority on shellfish;Dr G A Robinson, the chief executive of the eighthrespondent (who made the comment in his personalcapacity); Dr Allan Heydorn, a specialist consultantto the Southern African branch of the World Wide Fundfor Nature, the world’s leading non governmentalconservation body; and Mr. M A Sweijid, a lecturer inthe Department of Zoology, who is currently engagedin postgraduate research relating to abalone on theSouth African coast.

Applicants contend that the best way to resolve (in sofar as resolution is possible) the serious difference ofopinion which have arisen between the, expertsregarding the desirability of sixth and seventhrespondents being allowed to proceed with ‘theproposed steel mill project in proximity to the sensitiveenvironment in respect of which South Africa hasinternational obligations under the RamsarConvention, is by way of an investigation under s 15of Act 73 of 1989.

They say further that a departmental investigation andconsideration of the rezoning application by secondand third respondents, assisted by the officials andresources of the Provincial Administration of theWestern Cape, will, from the nature of things, besuperficial and no real substitute for the thorough andextensive investigation in depth, which will tic able tobe carried out by the board of investigation in terms ofAct 73 of 1989, which, unlike the provincialprocedures, will involve the subpoenaing of witnessesand documents, the interrogation under oath, in public,of witnesses with the opportunity given to interestedparties, subject to the control by the chairman of theboard of investigation, to present evidence and rebutopposing opinions which are believed to be erroneous.In this regard, it is relevant to point out that theChairman of the board appointed by first respondentis Dr the Honorable J H Steyn, a former Judge of thisCourt.

In an affidavit filed on behalf of second and thirdrespondents, Mr. Vice Hilary Theunissen, a deputychief planner in the Department of Housing, LocalGovernment and Planning (Land Affairs) of theProvincial Administration of the Western Cape,explains the procedure being followed by second and

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third respondents in considering the rezoningapplication. He states that the views of interestedparties and experts, even those with reservationsregarding the desirability of the project, are from timeto time obtained and they are given adequateopportunity to bring their views to the attention ofsecond and third respondents. The expertise of theCape Nature Conservation, a division of the ProvincialAdministration, is also being utilized so as to ensurethat eventually a well considered decision can be maderegarding the rezoning application. He referred to anumber of meetings, inspections and discussions whichhave taken place in order to indicate the thoroughnesswith which second and third respondent and theWestern Cape Provincial Administration have beenhandling the matter. He admits that the ProvincialAdministration does not have the same statutorypowers but denies that second respondent will not beable to make a lawful and considered decision in termsof Order 15 of 1985 without such powers.

Before the submissions of counsel are considered, it isdesirable to set out the relevant statutory provisionsof the Constitution, the Environment Conservation Act73 of 1989, the general policy determined in terms ofs 2(I) thereof, and the Land Use Planning Ordinance15 of 1985 (Cape).

Section 7 of the Constitution provides as follows:

‘1) The chapter shall bind alI legislative andexecutive organs of state at all levels ofgovernment.

2) This chapter shall apply to all law in forceand all administrative decision taken and theperiod of operation of this Constitution.

3) Juristic persons shall be entitled to the rightscontained in this chapter where, and to theextent that, the nature of the rights permits.

4) (a) When an infringement of or a threat toany right entrenched in this chapter is alleged,any person referred to in para (b) shall beentitled to apply to a competent court of lawfor appropriate relief, which may include adeclaration of rights. (b) The relief referred toin para (a) may be sought by: (i) A personacting on his or her own interest."

Section 23 of the Constitution provides as follows:

‘Every person shall have the right of access toall information held by the State or any of its

organs at any level of government in so far assuch information is required for the exercise orprotection of any of his or her rights,’

Section 24 of the Constitution read as follows:

"Every person shall have the right to-a) lawful administrative action where any ofhis or her rights of interests is affected orthreatened;b) procedurally fair administrative action whereany of his or her rights or legitimateexpectations is affected or threatened;c) be furnished with reasons in writing foradministrative action which affects any of hisor her rights or interests unless the reasons forsuch action have been made public; andd) administrative action which is justifiable inrelation to the reasons given for it where anyis affected or threatened."

Section 35(I) and (3) of the Constitution provides:

"(1) In interpreting the provisions of thischapter a court of law shall promote the valueswhich underlie an open and democraticsociety based on freedom and equality andshall, where applicable, have regard to publicinternational law applicable to the protectionof the rights entrenched in this chapter, andmay have regard to comparable foreign caselaw.

(3) In the interpretation of any law and theapplication and development of the commonlaw and customary law, a court shall have dueregard to the spirit, purport and objects of thischapter."

Sections 2 and 3 of the Environment Conservation Act73 of 1989, which make up Part 1 of the Act, reads asfollows:

2(I) Subject to the provisions of ss (2) theMinister may by notice in the Gazette determinethe general policy, including policy with regardto the implementation and application of aconvention, treaty or agreement relating to theenvironment which has been entered into orratified, or to be entered into or ratified, by theGovernment of the Republic, to be applied witha view to :

a) the protection of ecological processes,natural systems and natural beauty as well

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as the preservation of biotic diversity in thenatural environment;

b) the promotion of sustainable utilization ofspecies and ecosystems and the effectiveapplication and re-use of natural resources;

c) the protection of the environment againstdisturbance, deterioration, defacement,poisoning, pollution or destruction as aresult of man-made structures,installations, processes or products orhuman activities;

d) the establishment and maintenance ofacceptable human living environment inaccordance with the environmental valuesand environmental needs of communities;

e) the promotion of the effectivemanagement of cultural resources in orderto ensure the protection and responsibleuse thereof;

f) the promotion of environmental educationin order to establish an environmentallyliterate community with a sustainable wayof life; and

g) the execution and co-ordination ofintegrated environmental monitoringprogrammes.

(I A) The Minister may. in determining the policy underss (I), if in the opinion of the Minister it will furtherthe objectives mentioned in ss (I) (a), (b), (c), (d), (e)(0 and (g), determine norms and standards to becomplied with.

(2) The policy contemplated in ss (I) shall bedetermined by the Minister after consultation with:

a) each Minister charged with theadministration of any law which in theopinion of the Minister relates to a matteraffecting the environment;

b) the Minister of State Expenditure;c) the Administrator of each province; andd) the council.

(3) The Minister may at any time, subject to theprovisions of ss (2), by notice substitute, withdrawor amend the policy determined in terms of ss (I).

3(1) Each Minister, Administrator, local authority andgovernment institution upon which any power has beenconferred or to which any duty which may have aninfluence on the environment has been assigned by orunder any law, shall exercise such power and performsuch duty in accordance with the policy referred to under S.2.

(2) The Director General shall ensure that the policywhich has been determined under s 2(I), is compliedwith by each Minister, Administrator, local authorityand government institution referred to in ss (I), andmay :a) Take any steps or make any inquiries he deems fit

in order to determine if the said policy is beingcomplied with by any such Minister,Administrator, local authority or governmentinstitution: and

b) If in pursuance or any step taken or inquiry madeunder para (a), he is of the opinion that the said policyis not being complied with by any such Minister,Administrator, local authority or governmentinstitution, take such steps as he deems fit in orderto ensure that the policy is complied with by suchMinister, Administrator, local authority orgovernment institution.

In Part II of the Act, provision is made for theestablishment of a Council for the Environment and aCommittee for Environmental Co-ordination and theappointment of boards of investigation in terms of s15, which reads as follows:

(I) The Minister shall from time to time appoint a boardof investigation to assist him in the evaluation of anymatter or any appeal in terms of the provisions of thisAct;

(2) The board of investigation shall consist of:

(a) (i) a Judge or retired-Judge-of the Supreme Courtof South Africa;ii) a magistrate or retired magistrate;iii) any person admitted in terms of the Admission

of Advocates Act 74 of 1964 to practice as anadvocate: or;

iv) any person admitted in terms of the Attorney’sAct 53 of 1979 to practice as an attorney, whoin the opinion of the Minister has a knowledgeof matters relating to the environment, and isdesignated by him as chairman; and

(b) such number of other persons as the Minister deemsnecessary and in his opinion have expertknowledge of the matter which the board ofinvestigation has to consider.

(3) A session of the board of investigation shall takeplace on the date and at the time and place fixed bythe chairman, who shall advise the Minister and therelevant parties in writing thereof.

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(4) The board of investigation may for the purposes ofthe investigation-

(a) instruct any person who in its opinion maygive material information concerning the subjectof the investigation or who it believes has in hispossession or custody or under his control anybook, document or thing which has any bearingupon the subject of the investigation, to appearbefore such board;

(b) administer an oath to or accept an affirmationfrom any person called as a witness at theinvestigation; and

(c) call any person present at the investigationas a witness and interrogate him and require himto produce any book, document or thing in hispossession or custody or under his control.

(5) An instruction referred to in ss (4)(a) to appearbefore the board of investigation shall be by way ofsubpoena signed by the chairman of the board.

(6) (a)A session of the board of investigation shall beheld in public and (b) the decision of the board andthe reason therefore shall be reduced to writing.

(7) A member of the board of investigation who is notin the full-time employment of the State may be paidfrom money appropriated by Parliament for thatpurpose such remuneration and allowances as theMinister may, with the concurrence of the Minister ofState Expenditure, determine either in general or inany particular case.

(8) The Director-General shall designate, subject tothe provisions of the Public Service Act III of 1984, asmany officers and employees of the Department as maybe necessary to assist the board in the administrativework connected with the performance of the functionsof the board of investigation, provided that with theapproval of the Minister, such administrative work maybe performed by any person other than such officer oremployee at the remuneration and allowances whichthe Minister with the concurrence of the Minister ofState Expenditure may determine.’’

Part V of the Act, as its name indicates, deals with thecontrol of activities which may have a detrimentaleffect on the environment. Sections 21 and 22, whichare contained in this Part of the Act, deal with theidentification of activities which will probably have adetrimental effect on the environment and theprohibition of the undertaking of identified activities.

They read as follows:

21 (I) The Minister may by notice in the Gazetteidentify those activities which in his opinion may havea substantial detrimental effect on the environment,whether in general or in respect of certain areas.

(2) Activities which are identified in terms of ss (1)may include any activity in any of the followingcategories, but are not limited thereto:

a) land use and transformation;b) water use and disposal;c) resource removal including natural livingresources;d) resource renewal;e) agricultural processes;f) industrial processes;g) transportation;h) energy generation and distribution;i) waste and sewage disposal;j) chemical treatment; andk) recreation.

(3) The Minister identifies an activity in terms of ss(I) after consultation with;

a) the Minister of each department of Stateresponsible for the execution, approval orcontrol of such activity;

b) the Minister of State Expenditure; andc) the Administrator of the province

concerned.

22(I) No person shall undertake an activity identifiedin terms of s 21 (I) or cause such an activity to beundertaken except by virtue of a written authorizationissued by the Minister or by an Administrator or a localauthority or an officer, which Administrator, authorityor officer shall be designated by the Minister by noticein the Gazette.

(2) The authorization referred to in ss (1) shall only beissued after consideration of reports concerning theimpact of the proposed activity and of alternativeproposed activities on the environment, which shallbe complied and submitted by such persons and in sucha manner as may be prescribed.

(3) The Minister or the Administrator, or a localauthority or officer referred to in ss (I), may at his orits discretion refuse or grant the authorization for theproposed activity or an alternative proposed activityon such conditions, if any, as he or it may deemnecessary.

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(4) If a condition imposed in terms of ss (3) is notbeing complied with, the Minister, any Administratoror any local authority or officer may withdraw theauthorization in respect of which such condition wasimposed, after at least 30 days’ written notice was givento the person concerned:

Part VII of the Act contains certain general provisionsamong, which are s 31A (which was inserted by S. 19of Act 79 of 1992) which deals with the powers of theMinister and Administrator (now a provincial premier),local authorities and government institutions where theenvironment is damaged, endangered or detrimentallyaffected and s 34 which deals with compensation forloss. They read as follows:

3I A (I) If, in the opinion of the Minister or theAdministrator, local authority or governmentinstitution concerned, any person performs any activityor fails to perform any activity as a result of which theenvironment is or may be seriously damaged,endangered or detrimentally affected, the Minister,Administrator, local authority or governmentinstitution, as the case may be, may in writing directsuch person -

a) to cease such activity; orb) to take such steps as the Minister,

Administrator, local authority orgovernment institution, as the case maybe,may deem fit, within a period specified inthe direction, with a view to eliminating,reducing or preventing the damage, dangeror detrimental effect.

(2) The Minister or the Administrator, local authorityor government institution concerned may direct theperson referred to in ss (1) to perform any activity orfunction at the expense of such person with a view torehabilitating any damage caused to the environmentas a result of the activity or failure referred to in ss (1),to the satisfaction of the Minister, Administrator, localauthority or government institution, as the case maybe.

(3) If the person referred to in ss (2) fails to performthe activity or function, the Minister, Administrator,local authority or government institution, dependingon who or which issued the direction, may performsuch activity or function as if he or it were that personand may authorize any person to take all steps requiredfor that purpose.

(4) Any expenditure incurred by the Minister, anAdministrator, a local authority or a government

institution in the performance of any function by virtueof the provisions of ss (3), may be recovered from theperson concerned.’

34 (I) If in terms of the provisions of this Actlimitations are placed on the purposes for which landmay be used or on activities which may be undertakenon the land, the owner of, and holder of a real right in,such land shall have a right to recover compensationfrom the Minister or Administrator concerned inrespect of actual loss suffered by him consequent uponthe application of such limitations.(2) The amount so recoverable shall be determined byagreement entered into between such owner and holderof the real right and the Minister or Administrator, asthe case may be, with the concurrence of the Ministerof State Expenditure.

(3) In the absence of such agreement, the amount tobe paid shall be determined by a court referred to in s14 of the Expropriation Act 63 of 1975 and theprovisions of that section and s 15 of that Act shallmutatis mutandis apply in determining such amount.

Included in this part of the Act is S.40, which providesfor the State including a provincial administration, tobe bound by the provisions of the Act.

Acting in terms of s 2(I) of the Act, the then Ministerof Environmental Affairs, Mr. A van. Wyk issued anotice (No 5 I of 1994, which was published inGovernment Gazette 15428 of 21 January 1994)containing the general policy determined by himthereunder.

The preamble contains the following:

‘The environmental policy is based on the followingpremises and principles:

• Every inhabitant of the Republic of SouthAfrica has the right to live, work, and relaxin a safe, productive, healthy andaesthetically and culturally acceptableenvironment and therefore also has apersonal responsibility to respect the sameright of his fellow man.

• Every generation has an obligation to actas a trustee of its natural environment andcultural heritage in the interest ofsucceeding generations. In this respect,sobriety, moderation and discipline arenecessary to restrict the demand forfulfillment of needs to sustainable levels.

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• The State, every person and every legalentity has a responsibility to consider allactivity that may have an influence on theenvironment duly and to take all reasonablesteps to promote the protection,maintenance and improvement of both thenatural environment and the human livingenvironment.

• The maintenance of natural systems andecological processes and the protection ofall species, diverse habitats and land formsis essential for the survival of all life onearth.

• Renewable resources are part of complexand interlinked ecosystems and mustthrough proper planning and judiciousmanagement be maintained forsustainability. Non-renewable naturalresources are limited and their utilizationmust be extended through judicious use andmaximum reuse of materials with the objectof combating further over-exploitation ofthese resources.

• The concept of sustainable development isaccepted as the guiding principle forenvironmental management. Developmentand educational programmes are necessaryto promote economic growth, social welfareand environmental awareness, to improvestandards of living and to curtail the growthin the human population. Such programmesmust be formulated and applied with dueregard for environmental considerations.

• A partnership must be established betweenthe State and the community as a whole,the private sector, developers, commerceand industry, agriculture, local communityorganizations, non-governmentalorganizations (representing other relevantplayers) and the international communityso as to pursue environmental goalscollectively.

The section on environmental management systemscontains the following paragraph:

“ Each Minister, Administrator, localauthority and government institution uponwhich any power has been conferred or towhich any duty which may have an influenceon the environment has been assigned by orunder any Act shall exercise such power andperform such duty with a view to promoting theobjectives stated in sections 1 and 2 of the Environment Conservation Act 73 of 1989.”

The section on land use and nature conservation readsas follows:

Judicious use of land is an importantfoundation of environmental management. Allgovernment institutions and also privateowners and developers must therefore planall physical activities for example forestry,mining, road building, water storage andsupply, agriculture, industrial activities andurban development in such a way as tominimize the harmful impact on theenvironment and on man and, wherenecessary, to facilitate rehabilitation. Abalance must be maintained betweenenvironmental conservation and essentialdevelopment. Before embarking on any large-scale or high-impact development project, aplanned analysis must be undertaken in whichall interested and affected parties must beinvolved. In order to attain the sustainableutilization of resources, the principles ofintegrated environmental management areaccepted as one of the managementmechanisms.

Particular efforts must be made to conserve valuablehigh potential agricultural land for agriculturalpurposes to protect water resources and sites andobjects of significant cultural interest, to combatdeforestation of indigenous forests, soil erosion,desertification, and to prevent the destruction ofwetlands and other environmentally sensitive areas.Among the main attractions South Africa has to offeras a tourist destination are its aesthetic qualities andthe scenic beauty of the environment. These are assetsthat must also be considered. Scientific conservation principles must be applied in all land-use planning.

NATURE CONSERVATION

National nature conservation plan, including thecompilation of a complete inventory of and aclassification system for protected areas will bedeveloped by the Department of Environmental Affairsto ensure the maintenance of South Africa’sbiodiversity. The interests and wishes of the localpopulations must be considered in the establishmentof each new protected area. Effective management andcontrol should be established to make possible thesustainable use of economically viable naturalresources, for example game, marine resources, Veldand natural forests.

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The maintenance of the ecological integrity and naturalattractiveness of protected areas must be pursued as aprimary objective.

All responsible government institutions must applyappropriate measures based on sound scientificknowledge, to ensure the protection of designatedecologically sensitive and unique areas, for examplewilderness areas, grasslands, wetlands, islands,mountain catchment area, indigenous forests, deserts,Antarctica and the coastal zone.

Section 16(I) of the Land Use Planning Ordinance I5of 1985, which is to be found in Part II of the ordinance,provides that either the Administrator (now thePremier) or, if authorized thereto by the provisions ofa structure plan, a council may grant or refuse anapplication by an owner of land for the rezoningthereof. (It is common cause in the present matter thatsixth respondent’s application does not fall to bedecided by the relevant council).

Section 36 of the Ordinance provides as follows:

“36(1) Any application under chap II or III shallbe refused solely on the basis of a lack ofdesirability of the contemplated utilization ofland concerned including the guidelineproposals included in a relevant structure planin so far as it relates to desirability, or on thebasis of its effect on existing rights concerned(except any alleged right to protection againsttrade competition).”

It is clear, in my view, that the contentions of the partiesin this case raise the following questions for decision:

1. Have the applicants the right to an ordercompelling first respondent to appoint a board ofinvestigation?

2. Have they the right to ask for an order compellinghim to amend and/or amplify the terms of referenceof the board appointed by him?

3. Have they the right to have documentation in thepossession of the first respondent relating to theproposed steel mill development made availableto them?

4. Have the applicants locus standi to claim an orderrequiring second and third respondents to refrainfrom deciding the rezoning application before theboard appointed in terms of s I5 (I) has finalizedits investigation?’

5. Have the applicants shown that they have a right,which is going to be infringed?

6. If they have shown that they have such a right,have they shown an actual or threatenedinfringement?

7. Have the applicants an alternative remedy?

8. Have the applicants shown that they will sufferirreparable harm unless the interdict sought isgranted?

9. Have the applicants shown that the balance of fairness is in their favour?

10. Should the Court in the exercise of its discretiongrant the interdict sought?

(I) Have the applicants the right to compel therespondent to appoint a board of investigation?

In support of his submission that the applicants havesuch a right, Mr. De Villien QC. Who with Mr. Potgieterappeared on behalf of the applicants, relied verystrongly on the use of the word ‘shall’ in the English (signed)text of s 15(I) of Act 73 of 1989. (The Afrikaans textmerely uses the present tense (‘Die Minister stel vantyd tot tyd ‘n ondersoekaan. ).

It is however clear as Mr. Van Schalkwyk SC, whoappeared with Mr. Hiemstra on behalf of the first,second and third respondents, submitted that the useof the expression ‘shall’ does not necessarily indicatea legislative intention to impose an obligation, in somecases a provision containing the word ‘shall’ may bemerely directory or empowering. Most of the cases inwhich the word ‘shall’ has been construed concernedthe question as to whether the failure to do somethingwhich the statute in question has said ‘shall’ be done,visits the transaction concerned with nullity: see Suterv Scheepers 1932 AD 165 and the many cases in whichit has been referred to. This is not such a case here. Thequestion to be answered is whether the use of the wordindicates an obligation to act as opposed to anempowerment. As Starke J said in the Australian caseof Re Davis (1974) 75 CLR 409 at 418-19:

"The word “shall” does not always impose an absoluteand imperative duty to do or omit the act prescribed.The word is facultative: it confers a faculty or power.The word “shall” cannot be construed withoutreference to its context."

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From the context, it is clear, in my view, that theMinister is not obliged to appoint a board. The purposefor which a board is appointed is to assist the Ministerin evaluating a matter. As Mr. Van SchaJkwykcontended, there is no express provision that theMinister is obliged to follow the advice given, nor ishe precluded from making a decision in cases wherehe has not appointed a board. That this is so is borneout by the use of the expression ‘from time to time’,which is a clear indication that the appointment of aboard is not a prerequisite for the consideration of everymatter or appeal. This is clear indication in my viewthat the provision in question is permissive but notobligatory.

From the fact that the respondent in my view, isempowered, but not obliged by s .15(l.) of Act 73 of1989 to appoint a board, it must follow as Mr. VanSchaJkwylc contended, that no-one can compel himto appoint a board.

Consequently, the first question a rising for decisionin this case must be decided against the applicants.

(2) Have the applicants the right to an ordercompelling first respondent to amplify and/or amendto board’s terms of preference?

I think that it must follow, as Mr. Van Schal/cwyltsubmitted, that if applicants cannot compel theappointment of a board, they have no right to demandthe amplification or amendment of its terms ofreference. The Minister is empowered to appoint aboard to advise him on matters on which he desiresassistance. Applicants have no right to tell him that heshould be assisted on some other matter, which he hasnot set out in the board’s terms of reference.

(3) Have the applicants the right to have thedocumentation in the possession of first respondentrelating to the steel mill project made available tothem?

Section 23 of the Constitution was considered by theFull Bench of this Court in Nortje and Another v.Attorney General Cape and Another 1995 (2) SA 460(C) (1995 (I) SACR 446) in relation to a claim byaccused persons to the statements contained in thepolice docket relating to their case. At 474F-47SA(4fJJe-j (SACR) Marais J (as he then was) with whomFagan DIP and Scott J concurred said:

"The right of access to the information of which S.23is plainly not absolute and unqualified. Apart frompotential limitations of the right which might be

permissible in terms of s 33(1), 23 Contains its ownqualification in that the information requested mustbe required for the exercise or protection of any of therights of the person concerned. In resisting theapplicants’ contentions, Mr. Slabbert on behalf of theState, submitted that “required” is to be understood as“needs” rather that “desires” and that, in this sense itcannot be said that an accused person requires thewitnesses’ statements in the police docket. In order toexercise or protect his rights, such a narrowconstruction of the word “required” does not seem tome to be justified. I think that the word must beunderstood as meaning “reasonably required” and Ihave little doubt that the statements in the police docketof witnesses to be called would ordinarily bereasonably required by a accused person in order toprepare for trial in a criminal prosecution. That it ishis or her right to defend himself or herself is, of course,beyond question. There may be other material inthe police docket, which is not reasonably required.The reasonableness of the request must be judged. Ithink by taking the respective positions of both theaccused and the State into account, it cannot be rightto view the question solely through the accused’sspectacles. One thinks for instance of correspondencebetween the prosecutor or Attorney General and theinvestigating officer or communication between theinvestigation officer and his superior regarding theprogress of the investigation or possible leads thatcould be followed. In the present case however it isonly the witnesses statements that are in issue."

In the present case, no question of a possible limitationin terms of S. 33( I ) of the Constitution need beconsidered because Mr. Van Schalkwyk did not suggestthat if the documentation sought by the applicantsunder s 23 was required by them for the exercise orprotection of any of their rights, first respondent couldrefuse to make it available because of any limitationon applicants’ right under s 23 of the Constitutionarising under s 33 (I) thereof.

In the present case the first second and third applicantsas owners of the trust property, and fourth applicantas a beneficiary under the trust did in my viewreasonably require the documentation referred to inthe relevant paragraph in the notice of motion for thepurpose of protecting their rights to the trust propertywhich was potentially threatened by the proposed steelmill if it was undesirable (so that the rezoning stood tobe refused under s 36 of the ordinance) in order toexercise their rights to object to the rezoning, whichthey had because of their interest therein flowing fromthe trust property which it will be remembered, wasright opposite the Langebaan lagoon. The area which

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in view of some at least of the experts who haveexpressed views on the topic, may well bedetrimentally affected by the proposed development.Applicants were also able to protect their right bypersuading first respondent to exercise his powersunder Act 73 of 1989. It is to be noted that s 23 of theConstitution does not limit in any way the rights forthe exercise or protection of which an applicant isentitled to seek access to officially held information,nor is there any limitation or restriction in respect ofthe manner or form in which such exercise or protectionwill take place.

I am satisfied therefore that the applicants have madeout a case under s 23 of the Constitution in respect ofdocumentation in first respondent’s possession relatingto the steel mill project. Whether all the documentationsought having been made available without prejudiceby first respondent, the only question to be consideredat this stage is whether the applicants are entitled tocosts.

The application against second and third respondents.

I turn now to consider the applicants’ prayer for anorder interdicting second and third respondents frommaking a decision on the rezoning application beforethe finalisation of the board’s investigation.

(4) Locus standi

Here, as appears from the summary I gave of thequestions to be considered in this case, the firstquestion to which I must try to find the answer iswhether the applicants have locus standi to ask for theinterdict sought against second and third respondents.

Sixth and seventh respondents whose counsel raised theobjection of a lack of locus standi, which was not takenby second and third respondents, whose counsel. Mr.Helberg, contended, relying on Jacobs en ‘n Ander vWak.r en Andere 1992 (I) SA 521 (A) at 533J-534Ethat applicants had to show that they had a directinterest in the relief sought and that they had not doneso. He contended further, relying again on the Jacobscase (at 540H), that a person asking for relief cannotlay claim to locus standi if his interest in the case is nomore and no less than the interest which all citizenshave therein.

In developing this submission, he referred to the factthat although the papers reveal that the trust propertyis situated at Meeuklip Langebaan right opposite thelagoon, there is no indication as to how far it is fromthe proposed development.

He referred further to the fact that the applicantsreferred to the structure plan for the Vredenburg-Saldanha area which had been approved in terms of s4 of the ordinance and which provided that the area inquestion. i.e. the area where the proposed steel millwas to be built was to be allocated for heavy industry.He pointed to the fact that there was no evidence beforethe Court that the trust property was in the area forwhich the structure plan was approved and said thatprima facie it did not fall in that area. Clearly, so hecontended, the areas of Vredenburg-Saldanha on theone hand and Langebaan on the other are not in thesame municipal area.

He referred further to the fact that first applicant saidin his affidavit that

“die beleweis en genot voortspruited uit dieeieoaarskap vao bierdie eieadom (i.e. the trustproperty) boa direk verbaad met die beleweoiseo genot voortspruitead Bit die strandmeer dieaatuar eo die omgewiq aldaar. Die waarde. Vanhierdie eieodom hog na my meaiq ook daarmeeverband” and refereed to the fact that theapplicants do not allege that the value of theproperty as a result of the development will beprejudicially affected or reduced. In the lightof these considerations, he submitted theapplicants have not succeeded in showing thatthey have the necessary locus standi to bringthe application.

Mr. De Villiers submitted that Mr. Helberg’s argumentsregarding locus standi were refuted by the provisionsof s 7(4)(b) of the Constitution which evinced a clearintention to put an end to the previous restrictiveapproach to locus standi adopted by the courts. Hesubmitted further that apart from the fact that Mr. VanHuyssteen in his personal capacity is before the Courtas fourth applicant, a purposive approach tointerpreting s 7(4)(b) would lead to the conclusion thattrustees suing on behalf of the trust would clearly beregarded as falling within the manning of s 7(4)(b). Iagree that the ‘own interest’ referred to in s 7(4)(b)(i)is wide enough to cover an interest as trustee. AsProfessors J R L Milton, M G.Cowling, JR Lund, Mr.P G Schwikkard and Mr. M Francis point out in thechapter on ‘Procedural rights’ in Van Wyk et al (eds)Rights and Constitutionalism - The New South AfricanOrder at 421, the Constitution had adopted andentrenched a very liberalised notion of legal standing.This ‘more generous approach to legal standing’(opcit at 422) is applicable as s 7 (4) makes clear in allcases where an infringement of or a threat to any right

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entrenched in chap 3 of the Constitution is alleged.Applicants rely on a threatened infringement of s 24(b) of the Constitution which gives them an entrenchedright to procedurally fair administrative action whereany of their rights or legitimate expectations areaffected or threatened. First, second and thirdapplicants’ rights as trustees in respect of the trustproperty in my view will be affected or threatened ifsecond and third respondents decide the rezoningapplication in favour of sixth and seventh respondentsbefore the finalisation of the board’s investigation andif such action on their part amounts to procedurallyunfair administrative action (a question which I shallconsider later in this judgment). I say that their rightsin respect of the trust property, which is right oppositethe lagoon, must of necessity be diminished byindustrial activity which pollutes or otherwisedetrimentally affects the natural beauty and enjoymentassociated with being near to the lagoon. One of thepurposes for which the trust property may well be usedis for the erection of a holiday home and it clearly hasvalue as the potential site of a holiday home. A courtcan take judicial notice of the fact that the sites forholiday homes will be more valuable if they are inclose proximity to beautiful unspoilt natural areas andthat they will be much less valuable if such areas arepolluted or otherwise detrimentally affected. Whetheror not the trust property is in the area earmarked in theVredenburg Saldanha structure plan for heavy industrytakes the matter no further as it is clear form s 5(3) ofthe ordinance that a structure plan does not confer ortake away any right in respect of land; nor does it matterthat the papers do not indicate how far the trust propertyis from the proposed steel mill development. What theyindicate is that if the views of those experts who areopposed to the development are right the lagoon willbe affected. As I have said, if the lagoon is adverselyaffected it is clear that the trust property, which is rightopposite it, will also be adversely affected.

It is also clear that Mr. Van Huyssteen in his personcapacity, as fourth applicant, will be affected in hisinterests as a beneficiary entitled to use and occupythe trust property and the benefits associated with suchuse and occupation which clearly include those flowingfrom its proximity to the lagoon. I am accordinglysatisfied that the applicants have locus standi to askfor the order sought by them against second and thirdrespondents.

(5) Applicants’ right:

The next question to be considered is whether theapplicants have the right in the circumstances of thiscase to the interdict sought.

I have already said that the applicants have the right toprocedurally fair administrative action in this case. Thequestion to be considered is whether it would beprocedurally unfair for them if second and thirdrespondents were to decide the rezoning applicationbefore the board has finalised its investigation. It isaccordingly necessary to consider what would amountto procedural fairness or unfairness in thecircumstances of this case.

Mr. Van Schalkwyk contended that the applicants haveno rights to the order sought by them on this part ofthe case because there is no provision in the ordinancewhich requires that the findings and/orrecommendations of a board of investigation appointedin terms of S. 15(1) of Act 73 of 1989 (where one hasbeen appointed) must be taken into account before arezoning decision is made. He also formulated hissubmission in this regard as follows:

‘There is nothing which especially requires thefunctionary charged with a rezoning decision to takeinto account the findings and/or recommendation of aboard of investigation which has been appointed underother legislation for other purposes.

It may be that when the ordinance was passed, therewas nothing which compelled a functionary chargedwith making a rezoning decision to take into accountfindings or recommendations made by boardsappointed under other legislation. But since theordinance was passed in 1985, two important thingshave happened which will impinge directly on rezoningapplications. The first was the enactment and cominginto operation of the Act 73 of 1989 and the publicationof the general policy determined in terms of S. 2 thereofand the second was the enactment and coming intooperation of the new Constitution. The direct linkedbetween a rezoning application under the ordinanceand Act 73 of 1989 is to be found in S. 3 of Act 73 of1989, which has been quoted above and which clearlyobliges second and third respondents to exercise thepowers conferred by the ordinance (which undoubtedlymay have an influence on the environment) inaccordance with the policy, determined under S. 2 ofthe Act. That policy (the material provision of whichhave been quoted above) requires:

“All responsible government institutions (whichphrase clearly includes second and thirdrespondents) to apply appropriate measuresbased on sound scientific knowledge to ensurethe protection of designated ecologicallysensitive and unique areas for examplewetlands…”

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The wetlands in question have been designated forprotection under an international convention to whichSouth Africa is a party.

That there is a direct link between s 24(b) of theConstitution and the duties of a functionary decidinga rezoning application under the ordinance isindisputable, because s 24(b) of the Constitutionapplies to all administrative action whereby anyperson’s rights or legitimate expectations are affectedor threatened, A decision to rezone the property onwhich sixth and seventh respondents propose to erecta steel mill to allow the erection and operation thereofwill undoubtedly affect applicants’ right to the trustproperty if the effect of the operation of the proposedsteel mill will be to pollute or otherwise detrimentallyaffect the lagoon. for the reasons I have already given,

It must follow that the applicants have the right toprocedural fairness in respect of the rezoning decision,

Mr. Helberg contended that S. 24(b) merely codifiesthe common law relating to natural justice and that asit is not suggested that second and third respondentswill deny the applicants a hearing (and thus fail tocomply with the audi alteram panem rule) or be biased(and thus fail to comply with the nemo iudex in suacausa rule), there can be no breach of natural justiceand thus no procedural unfairness in refusing to waituntil after the board has completed its investigation.

I cannot agree with this submission.

Apart from the fact that I do not agree that the rules ofnatural justice in our law are limited to the audi alterampanem and the nemo iudex in sua causa rules, I do notthink that one can regard s 24(b) as codifying theexisting law and thus read down, as it were, the widelanguage of the paragraph unless the existing law wasalready so wide and flexible that it was covered by theconcept of procedural fairness.

It is not entirely clear in England whether naturaljustice is but a manifestation of a broader concept offairness or whether ‘natural justice’ applies to ‘judicialdecisions’ and ‘a duty to act fairly’ exists inadministrative or executive determinations see CraigAdministrative Law 2nd edn 207, Whichever is thecorrect formulation everyone appears to accept thecorrectness of Tucker U’s dictum in Russell v Duke ofNorfolk and Others (1949) 1 All ER 109 (CA) at 118D-E, which is in the following terms:

‘There are, in my view, no words, which are ofuniversal application to every kind of inquiry and every

kind of domestic tribunal. The requirements of naturaljustice must depend on the circumstances of the case,the nature of the inquiry, the roles under which thetribunal is acting, the subject-matter that is being dealtwith, and so forth.

(This dictum has been quoted with approval from timeto time in South African decisions: see for exampleTunter v. Jockey Club of South Africa 19J.J (J) SA6JJ (AJ at 6-16E.)

One of the statements cited by Craig (lac cit) for theview that natural justice is a manifestation of thebroader concept of fairness is the well-known dictumof Lord Morris of Borth-y-Gest in Wiseman v.Borneman (1971) 1 AC 297 (HL) (1969) 1 All ER 275at JO8H-JO9B (AC)and 278C-£ (All ER) which reads as follows:

“ My Lords, that the competition on natural justiceshould at all stages guide those who discharge judicialfunctions is not merely an acceptable but is an essentialpart of the philosophy of the law. We often speak ofthe roles of natural justice. But there is nothing rigidor mechanical about them. What they comprehend hasbeen analyzed and described in many authorities. Butany analysis must bring into relief rather their spiritand their inspiration than any precision to definitionor precision as to application. We do not search forprescriptions, which will lay down exactly what mustin various divergent situations be done. The principlesand procedures are to be applied which, in anyparticular situation or set of circumstances, are rightand just and fair natural justice. It bas been said, itonly “fail’ play in action.” Nor do we wait for directionsfrom Parliament. The common law bas abundantriches; there we may find what Byles J. called “thejustice of the common law” (Cooper v. WandsworthBoard of Works (19863) 16 CBNS ISO at 194).”

Whatever the position may be in English law andwhatever the best formulation of the English rules onthe topic may be, I am of the view that in our law, theso-called audi alteram partem and nemo iudex in suacausa rules are but part of what the Appellate Divisiondescribed as the ‘fundamental principles of fairness’in the leading case of Marlin v Durban Turf Cluband Others 1942 AD 112 at 126 where TIndall JA said:

‘The expression in question (natural justice), whenapplied to the procedure of tribunals such as thosejust mentioned, seems to me merely a compendious(but somewhat obscure) way of saying that suchtribunals must observe certain fundamental principlesof fairness which underlie our system of law as well

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as the English law. Some of these principles werestated, in relation to tribunal created by statute by InnesCJ in Dabnn v. South African Railways 1920 AD S83 inthese terms: “Certain elementary principles speakinggenerally, they must observe; they must hear the partiesconcerned; those parties must have due and properopportunity of producing their evidence and statingtheir contentions and the statutory duties must behonestly and impartially discharged.” It will be notedthat the learned Chief Justice avoided’ using the term“natural justice.” And in Barlin v. Licensing Court forthe Cape, (1924) AD 472 the phrase used is: “have the fundamental principles. of justice been violated?”

It follows from what I have said that even if s 24(b) isto be regarded as merely codifying the previous lawon the point, a party entitled to procedural fairnessunder the paragraph is entitled, in appropriate case, tomore than just the application of the audi alleralnpartem and the nemo iudex in sua causa rules. Whathe is entitled to is in my view what Lord Morris ofBorth-y-Gest described as ‘the principle andprocedures ... which in (the) particular situation or setof circumstances are right and just and fair.’

If I am wrong in saying that the test formulated byLord Morris of Borth-y-Gest is in accordance with ourprevious law, then I am satisfied that it is the correcttest under s 24(b). I say this because I do not think thatthe expression ‘procedurally fair administrative action’is a term of art which when used in a statute particularlyin the Constitution leads to what I have called a readingdown of the statutory language. Section 35(1) and (3)of the Constitution enjoin a court interpreting chap: 3of the Constitution to promote the values whichunderlie an open and democratic society based onfreedom and equity and in interpreting any law andin the application and development of the commonlaw to have due regard to the spirit, purport andobjects of (the) chapter.

The correct interpretation of the meaning of ‘the rightto procedurally fair administrative action entrenchedin s 24(b) of the Constitution must be generous one‘avoiding what has been called the "austerity oftabulated legalism,” suitable to give to individuals thefull measure of the fundamental rights referred to, toadopt the language of Lord Wilberforce in Ministerof Home Affairs and Another v. Collins MacDonaldFisher and Another ( 1980) AC 319 (PC) at 328-9,(1979) 3 AU ER 21 at 25) an approach which has beenapproved by the Constitutional Court in S v. Zuma andothers 1995 (2) SA 642 (CC) at 651 A-D (199' (I)SACR 568 at 578c g) and S v Makwanyan and Another(case CC1’13194 delivered on 6 June 1995 (per

Chaskalson P at para [10] of the unreportedjudgement)- see also R v Big M Dru, Mart LId (1985)18 DLR (4th) 321 at 395-6 (also approved in S v Zuma(supra at 651E-H (SA) and 57Rb

‘The interpretation should be a generous ratherthan a legalistic one, aimed at fulfilling thepurpose of a guarantee and securing forindividuals the full benefit of the Charter’sprotection.’

In my view, the interpretation contended for by Mr.Helberg is legalistic and it does not secure forindividuals the full measure of the fundamental rightentrenched in s 24(b).

(6) Infringement or threatened infringement ofapplicants’ rights:The next aspect to be considered is whether it wouldbe unfair for second and third respondents not to waitthe finalisation of the investigation by the boardappointed by first respondent before making a decisionon the rezoning application. Mr. Van SchaJlcwyksubmitted that this Court could only make a findingon the point if it were clear that the investigation andconsideration of the re-zoning application by theProvincial Administration would be inadequate andin some way inferior to the investigation by the board.He- referred to what is said in Mr. Theunissen’saffidavit regarding the procedure being followed bythe Provincial Administration in this regard andsubmitted that there was nothing to show that thisprocedure would not be as good if not better, than theinvestigation by the board.

I do not agree. It is clear that there is a vast differenceof opinion between the various experts who havecommented upon the desirability, from anenvironmental view of allowing the development toproceed. When such differences exist and where theyappear as here to be irreconcilable, then experienceshows that there is no better way of getting at the truththan through a hearing where the witnesses who holdand espouse opposing views can testify under oath andin public and where they are subject to interrogation.While Wigmore’s statements (Wigmore Evidence. Vol.5 at 1361 (Chadbourn rev. 1974) that cross-examination is the greatest legal engine ever inventedfor the discovery of the truth and Lord Macmillan’sassertion (quoted by Richard du Cann QC in The Artof the Advocate (1985 cd) at 95-6) that ‘properly used,cross-examination in English courts constituted thefinest method of eliciting and establishing truth yetdevised may contain elements of exaggeration. It isgenerally recognised that a skilful interrogation can

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expose the inadequacies and fallacies in erroneousevidence in a manner which can seldom if ever bereplicated by any other method for establishing thetruth. Furthermore, the fact that the board will bold itsbearings in public is another factor calculated toimprove the quality of the testimony given because asin the case of judicial proceedings, publicity makesfor trustworthiness and completeness of testimony: see,for example, Wigmore Evidence vol. 6 at 1834(Chadboum rev. 1976), cited with approval byAckermann J in S v Leepile and Others (I) 1986 (2)SA 333 (W) at 338B-339J.

In addition to the very considerable advantages oftestimony on oath and interrogation and publicity mustbe added the advantages of being able to subpoenaany person who in its opinion may give materialinformation and/or who may produce any book,document or thing which may have a bearing on thesubject of the investigation to give evidence and beinterrogated and/or to produce the book, document orthing.

None of these advantages is available in the ProvincialAdministration consideration of the application. Theadvantages enjoyed by the board render itsinvestigation markedly superior to what may be calledadministrative investigation and make the expressedattitude of second and third respondents that they wishto be able to decide this application, beset as it is withbasic and seemingly irreconcilable differences ofopinion between the experts, difficult to understand.Willfully to ignore the advantages, which must flowfrom what will in my judgment, inevitably be a betterinvestigation far more likely to arrive at an answerbased, as the general environmental policy determinedin terms of s 2( I) of Act 73 of 1989 requires, on ‘soundscientific knowledge’ is to adopt a procedure which isunfair to all those persons who may be affected by thedecision made.

I wish to emphasize what it is that lam saying in thiscase and what it is that I am not saying. I am not sayingthat in every opposed rezoning application, a publichearing must be held where the protagonists of thevarious views and other persons able to give materialinformation can be interrogated and where theproduction of documents and other things with abearing on the matter can be compelled. What I amsaying is that, in the special circumstances of this case,where such an enquiry is going to be held and the wholematter thoroughly gone into by a board which willenjoy substantial advantages over those engaged on adepartmental investigation, there will beprocedural unfairness if the departmental investigation

is not held in abeyance until the board has finalised itsinvestigation.

There is a further advantage, which will flow fromfollowing such a course. If the rezoning application isgranted before the board’s investigation is finalisedand the board thereafter comes to the conclusion thatthe development should not be allowed to proceed andrecommends accordingly, then, even if first respondentaccepts the board’s recommendation and identifies theoperation of sixth and seventh respondent’s steel millin terms of s 21(1) of Act 73 of 1989; as an activitywhich in his opinion may have a substantial detrimentaleffect on the environment and refuses to authorise sixthand seventh respondents to operate the mill, unless initself it constitutes a hazard to the environment, willnot be able to be removed. Sixth and seventhrespondents will also, in these circumstances, beentitled to compensation in terms of s 34(I) of the Actfor the actual loss suffered by them in consequence ofthe limitation placed by first respondent on thepurposes for which the steel mill site may be used. Atthe moment the site may not be used for the operationof a steel mill. If the rezoning application is granted,sixth and seventh respondents will acquire the rightso to use it and a right to compensation if firstrespondent subsequently takes the right so as to usethe land away or imposes restrictions, which causesixth and seventh respondents loss. As a result a rightto compensation may arise, payable out of publicrevenue, for a loss which in its turn can only be sufferedif second and third respondents proceed to considerthe rezoning application before the board has finalisedits investigation. The aspect to which I have justreferred is a further factor relevant in deciding whetherwhat second and third respondents want to do will beprocedurally unfair, because respondent may well bedeterred from acting under s 21 of the Act and refuseit permit under s 22 thereof, as a result of the actionsof second and third respondents. Sixth and seventhrespondents would have a claim to what might wellamount to massive compensation.

The fact to which I have just referred (the possibilityof sixth and seventh respondents acquiring a claim. oran enhanced claim to compensation after rezoning andfollowed by s 2 I identification is relevant also inregard to the question as to whether I should exercisemy discretion (if I have one) in favour of the applicantsand I shall return to it when I consider that question.

I am accordingly satisfied that applicants have shownthat an infringement of their right to procedurally fairadministrative action is threatened.

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Other requirements for an interdict

I now proceed to consider whether the applicants haveestablished the other requirements for an interdict: thatthey will suffer irreparable harm and have noalternative remedy unless the order sought is grantedthat the Court should exercise its discretion in theirfavour and on the assumption that the relief they seekis of an interim nature; and that they have establishedtheir right prima facie that the balance of convenienceis in their favour. I shall assume, without deciding thatan applicant for an order prohibiting an infringementof one of his constitutional rights has to show the otheressentials for an interdict, although it is not self-evidentthat this is so. (It may be that factors of the kind I amnow to consider would in any event have to beconsidered, to some extent at least, in deciding thequestion of unfairness).

7. No irreparable harm and no alternative remedy;

Mr. Van Schalkwyk contended that the applicants arenot entitled to the order they seek because they havenot shown that they will suffer irreparable harm andthat they have no alternative remedy.

He contends in this regard that if the rezoning decisionis given in favour of sixth and seventh respondentsand the applicants are of the view, after finalisation ofthe board’s investigation, that the rezoning decisionis reviewable, the ‘harm’ can be repaired by means ofreview. The answer to that submission in my view isthat a review is a discretionary remedy. If the proposedsteel mill site is rezoned and a steel mill erectedthereon, the possibility exists that a reviewing Courtwill be reluctant to make an order the effect of whichwill be the demolition of an expensive steel mill: cfThompson and Another v Van Dyke and Another(CPD. case No 7417/93); an as yet unreported decisionof this Court, delivered on 9 December 1993, and thecases there cited.

Mr. Van Schalkwyk contended further that if therezoning decision were given in favour of sixth andseventh respondents and the board were to reportagainst the development, then first respondent couldact in terms of the Act so as to stop the operation ofthe steel mill. Here again the applicants will have noright to demand such action. First respondent has adiscretion under the section and it is by no means clearthat he will exercise it against 6

th and 7

th respondents.

It is also clear that a claim for damages cannot be anadequate alternative remedy because it will beextremely difficult for applicants to quantify.

I am accordingly satisfied that the applicants haveshown that they win suffer irreparable harm and haveno alternative remedy.

(8) Balance of convenience and discretion;

In view of my finding that the applicants have a rightto procedurally fair administrative action in this matterand that what second and third respondents proposeto do amounts to an infringement or threatenedinfringement of that right, I am not sure that it isnecessary for me to express an opinion on the questionof the balance of convenience in this matter but in asmuch as it was argued and the question of the balanceof convenience, or the ‘balance of fairness’ as FlemingDIP called it in Harnischfeger Corporation andAnother v Appleton and Another 1993 (4) SA 479 (W)at 491C,a case to which Mr. Helberg referred me, hasrelevance in regard to whether I should exercise mydiscretion (on the assumption that I have a discretionin a case where constitutional relief is sought). Ipropose to set out my views on this aspect of the case.

If the order sought is not granted and a decision isgiven in favour of sixth and seventh respondents andthe board reports later that the proposed developmentis undesirable and is likely to be detrimental to theenvironment, first respondent will have a discretion,as I have said as to whether he should act in terms ofss 21. 22 and 31 A of the Act. If he does so, the amountsexpended by sixth and seventh respondents will bewasted and compensation will be payable to sixth andseventh respondents. It is by no means clear whetherfirst respondent will in those circumstances, where he ispresented with a potentially expensive fait accompli,exercise his discretion against sixth and seventhrespondents.

On the other hand, if the board’s investigation leads toa finding that the proposed development cannot beregarded as undesirable in that it wi1l probably notdetrimentally impact on the environment or that suchimpact can be satisfactorily addressed by imposingconditions, then the rezoning application will in allprobability be granted, and the applicants will haveno reason to fear that their, rights will be adverselyaffected. Mr. Helberg however contended that theboard’s investigation will take time. He spoke of aslong as two years and he referred to a statement madein the affidavit filed on behalf of sixth and seventhrespondents that a delay in giving the decision on therezoning application may lead to a reconsideration ofthe whole project.

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Mr. De Villiers had a two-fold answer to thiscontention. Firstly, he said, it is clearly the wish offirst respondent that the investigation should bedisposed of as speedily as is reasonably possible.Secondly, he said, this Court can deal with this aspectby building into the order a provision for second andthird respondents to set the matter down for furtherhearing (after due notice to the applicants) for furtherargument on this aspect if they are of the view that theinvestigation is taking too long.

In my view, there is merit in both of Mr. De Villiers’submissions. It is clear from the provisions of s 15 ofAct 73 of 1989 that the investigation does not take theform of a trial, the chairman, who is a retired Judge ofgreat experience, will be in charge. He will be able toput a stop to anything amounting to an attemptedfilibuster on the part of anyone appearing before theboard. He will also be aware of the first respondent’sdesire for the investigation to be finalised as soon asreasonably possible and I have no doubt will actaccordingly. The order I propose to make incorporatesMr. De Villien’ suggestion regarding a possible re-setdown of the matter if it is believed that undue time iselapsing (which suggestion was first contained in anopen offer made by the applicants to second and thirdrespondents before the hearing).

In the circumstances, I am satisfied that the balance ofconvenience or fairness favours the applicants and thatI should exercise my discretion in favour of theapplicants in respect of the relief sought by themagainst second and third respondents.

ORDER

The order I make is the following:

1. First, second and third applicants’ application foran order against first respondent calling upon him

to appoint a board of investigation in terms of s15(I) of Act 73 of 1989 to investigate sixth andseventh respondents’ proposed steel factorydevelopment at Bredenburg-Saldanha andapplicants’ application for an order against firstrespondent to amend/or amplify the terms ofreference of the board of investigation appointedby him in terms of the said s 15(I) are dismissedwith costs, such costs to include those occasionedby the employment of two counsels.

2. Second and third respondents are ordered to hold inabeyance the decision on the rezoning applicationwith reference to the site on which the developmentof a steel factory by sixth and seventh respondentsis envisaged, pending the finalisation of theinvestigation of the board appointed in terms of s15( I ) of Act 73 of 1989, provided that second andthird respondents shall have the right to set thematter down for further argument (on 10 days’notice to the applicants and to sixth and seventhrespondents) on the question as to whether the ordermade in this paragraph should be uplifted on theground that the finalisation of the said board’sinvestigation is being unduly delayed.

3. The second, third, sixth and seventh respondentsare ordered, jointly and severally, to pay theapplicants’ costs in respect of the application forthe order contained in para 2 above.

4. First respondent is ordered to pay the costs of first,second and third applicants in relation to their claimfor documentation to be made available to them.

Applicants’ Attorneys: Cloete, Baker & Partners, First,Second and Third Respondents’ Attorney: StateAttorney. Sixth and Seventh Respondents’ Attorneys:Gildenhuys. Van der Merwe Inc. Pretoria.

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WILDLIFE SOCIETY OF SOUTH AFRICA

VERSUS

MINISTER OF ENVIRONMENT

Transkei Supreme Court-1996.

Application for mandamus to force government to protect environment; conservation area as coast – locusstandi.

to promote environmental conservation should havelocus standi to apply for an order to compel thestate to comply with its statutory obligations.

2. It was not certain that to afford locus standi to abody such as the applicant in the circumstances asthese would open the floodgates to a torrent offrivolous or vexatious litigation against the stateby cranks and busybodies. Neither was it certain,given the exorbitant costs of Supreme Courtlitigation that should the law be so adapted, cranksand busybodies would flood the courts withvexatious or frivolous applications. Should they betempted to do so, an appropriate order for costs wouldsoon inhibit their litigious ardor. It might well bethat the time has arrived for a re-examination ofthe common law rules of standing in environmentalmatters involving the state and for an adaptation ofsuch rules to meet the ever-changing needs ofsociety.

Applicants were granted order of mandamus.

FACTS

The applicants applied for an order compelling therespondents to enforce the provisions of a law onenvironmental conservation. It was contended that therespondents had granted rights of occupation and hadallocated sites within the coastal conservation area toprivate individuals. As a result of this encroachment,there was considerable and irreversible environmentaldegradation of the Transkei wild coast.

ISSUES

• Whether mandamus could issue

• Whether the plaintiffs had locus standi.

HELD

1. Where a statute imposed an obligation upon thestate to take certain measures in order to protectthe environment in the interest of the public, then abody such as the applicant with its main aim being

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Refusal of presiding Judge in civil trial-on grounds ofBias-Application for mandamus compelling state tocomply with statutory obligations to protectenvironment-some of applicants members of wildCoast Cottage Owners Association-presiding Judgeoccupier or owner of cottage on Wild Coast-Judge notmember of Association-Fact of occupation not givingrise to reasonable application of bias-Judge notstanding to gain from proceedings-Application refused.

Practice-Parties-Locus Standi-Where statute imposingobligation on state to protect Environment bodies, such as wildlife society should have locus standiat common law to apply for order compelling state tocomply with its obligations in terms of statute.

The applicants applied for an order compelling the first,second and third respondents to take steps to enforcethe provisions of s 39(2) of Decree 9 (EnvironmentConservation) of July 24 1992 (Tk). The first applicantwas the wildlife society of southern Africa and thesecond applicant its Conservation Director.

The third and fourth applicants were two lawfuloccupiers of cottages on the wild coast and membersof the wild coast cottage association. The firstrespondent was the Minister of Environmental Affairsof South Africa, the second respondent the premier ofthe Eastern Cape and the fourth to seventh respondentsthe chiefs of certain areas in the Eastern Cape.

The applicants contended that the fourth and seventhrespondents had granted the rights of occupation andhad allocated sites within the coastal conservation areato private individuals, in each case for a relativelysmall consideration. Shacks and dwellings had beenconstructed on those sites, which resulted intoenvironmental degradation, and roads, pathways and

tracks had been created through environmentallysensitive areas. It was conceded that considerableirreversible environmental degradation of the Transkeiwild coast with in the coastal conservation zone hadbeen and was occurring at the time of institution ofthe proceedings. The applicants contended that despitetheir efforts at persuading the first to third respondentsto comply with the obligation to enforce compliancewith the provisions of s 39 of the Decree, therespondents had not done so. It was a common causethat the administration of s 39 was vested in the firstrespondent.

At the commencement of the hearing of the application,the court was informed that an agreement had beenreached between the applicants and the second andthird respondents who terminated the litigationbetween the applicants and those parties. The firstrespondent applied in limine for the recusal of thepresiding Judge on the grounds that he was theoccupier or owner of a cottage on the wild coast. Itwas contended that this fact could cause the firstrespondent reasonably to suspect that the presidingJudge would be biased against the first respondent.The presiding Judge refused the application stating thathe was neither a member of the cottage ownersassociation nor of the wildlife society. He was of theopinion that were his opinion of the cottage in questionillegal in terms of the Decree, the mandamus soughtby appellants would obviously be inimical to his owninterests. The fact that he was the occupier of thecottage of the wild coast could not in any way giverise to a reasonable apprehension of bias on his part.

After initially contesting the applicants’ locus standi,the first respondent conceded this issue on the basisthat the provisions of s 7(4)(b) read with s 29 of theconstitution of the republic of South Africa, Act 200 of

WILDLIFE SOCIETY OF SOUTH AFRICA AND OTHERS

VERSUS

MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM OF THEREPUBLIC OF SOUTH AFRICA AND OTHERS

Case No: 1672/95

Transkei Supreme Court (Pickering J): 1996 June 21, 27

Environmental law-Environmental conservation-Application for mandamus compelling state to comply with itsobligations to protect environment imposed by statute- wildlife society having locus standi to apply for such orderby virtue of s 7 of constitution of the republic of South Africa Act 200 of 1993.

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1993. The court remarked, obiter, that there was muchto be said for the view that in circumstances where thelocus standi afforded to persons, S.7 of theconstitution was not applicable and when a statuteimposed an obligation upon the state to take certainmeasures in order to protect the environment in theinterests of the public, a body such as the firstapplicant with its main objective being to protectenvironmental conservation in South Africa shouldhave locus standi at common law to apply for an ordercompelling the state to comply with its obligations interms of such statute. One of the principle objectivesoften raised against the adoption of a more flexibleapproach to the problem of locus standi was that thefloodgates would thereby be opened giving rise to anuncontrollable torrent of litigation. It was not certainthat to afford locus standi to a body such as the firstapplicant in circumstances such as these would openthe floodgates to a torrent of frivolous litigation by busybodies. Neither was it certain given theexorbitant costs of Supreme Court litigation that shouldthe law be so adapted, cranks and busybodies wouldflood the courts with frivolous applications against thestate. Should they be tempted to do so an appropriateorder of costs would soon inhibit their litigation ardour.It might well be that the time has arrived for a re-examination of the common law rules of standing inenvironmental matters involving the state and for anadaptation of such rules to meet the ever changingneeds of society.

As regards the merits of the application for mandamus,the first respondent’s opposition to the applicationrested largely upon the fact that there was in existencea task group, which had been established to tackle theissue. The court held however, that the task group wasa non statutory advisory body of uncertain nature andduration, whose actions had in any event fallen shortof establishing that the provisions of s 39(2) of theDecree were being enforced by first respondent. Thecourt held accordingly that the applicants were entitledto an order that first respondent enforce the provisionsof s 39(2) of the decree.

The following decided cases were referred to in thejudgement of the court: Bamford v. Minister ofcommunity Development and state Auxiliary services1981 (3) SA 1054; Bromley London Borough Councilv Greater London Council and another [1982] All ER129 (CA) BTR Industries South Africa limited andothers v Metal and Allied Workers’ Union andanother 1992 (3) SA 673 (A); Executive Club, WesternCape legislature and Others v. President of theRepublic of South Africa and others 1995 (4) SA 877(CC) (1995) (10) BCLR 1289).

R v. Inland Revenue, Commissioners, Ex- parte NationalFederation of self employed and small business Ltd.[1982] AC 617; R v. Inspectorate of Pollution andanother, Ex -parte Greenpeace Ltd. (No2), (1994) 1 AllER 329 (QB) ;Sher and others v. Sadowitz 1970 (193).The court considered the following statutes: theconstitution of the republic of South Africa, Act 200 of1993, ss7, 126(3), and 229. 235(6): see Juta’s statutesof South Africa 1995 vol. 5 at 1-209.

Decree 9 (Environmental Conservation) of 24 July1992 (TK), s 39:

Application for an order compelling therespondents to enforce the provisions of Decree9 (Environment Conservation) promulgated bythe former government of Transkei on 24 July1992. The facts appear from the reasons forjudgement.

Pickering J: The four applicants herein, namely theWildlife society of South Africa, Keith Cooper, theconservation Director of the wildlife society and twolawful occupiers of certain cottages on the TranskeiWild coast seek as first to fourth applicantsrespectively, an order against the Minister ofEnvironmental Affairs and Tourism of the Republicof South Africa, the premier of the Eastern CapeProvince, the member of the executive council forAgriculture and Environmental Planning of the EasternCape Province and four chiefs of certain administrativeareas in the following terms:

1. That the first, second and third respondents areordered forthwith to take such steps and to do suchthings as may be necessary:

a) to enforce the provisions of Decree No 9promulgated by the former government ofTranskei on 24 July 1992 (“the Decree”):

b) to without derogating from the generality ofpara 1 (a) hereof, enforce the provisions of s39 (2) of the decree in the coastalconservation area established in terms of s39 (1) of the Decree.

2. That it is hereby declared that save to the extentthat the environmental conservation act 73 of 1989and the general policy determined in terms of s 2of the act on 21 January 1994 and 9 May 1994conflicts with or contradicts the decree in particularand other legislation of the former government ofTranskei in general, the Act and the said GeneralPolicy apply to and are enforceable in the territorythat formally constituted the republic of Transkei.

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3. That subject to para 2 of this order, the first, secondand third respondents are ordered forthwith to takesuch steps and to do all such things as may benecessary to:a) enforce the provisions of the Act;b) comply with the aforesaid General Policy; andc) secure compliance with the aforesaid

General Policy in the territory thatformally constituted the republic ofTranskei.

4. That save to the extent that they may be permittedto in terms of any law, the fourth, fifth, sixth andseventh respondents be and are herebyrestrained and interdicted from granting anyrights in land which formed part of the territory'shighest water-level reached during ordinary stormsduring the most stormy period of the year,excluding abnormal floods.

(2) Notwithstanding anything in any other law or inany condition of title contained, no person shall within the coastal conservation area, save under theauthority of a permit issued by the department inaccordance with the plan for the control of coastaldevelopment approved by resolution of the militarycouncil:-

a) clear any land or remove any sand, soil,stone or vegetation;

b) develop any picnic area, caravan park orlike amenity;

c) erect any building;d) construct any railway, landing strip,

slipway, landing stage or jetty;e) build any dam, canal, reservoir, water

purification plant, septic tank or sewerageworks;

f) lay any pipeline or erect any power line orfencing;

g) establish any waste disposal site or dumpany refuse;

h) construct any public or private road or anybridle path or footpath;

i) carry on any other activity which disturbsthe natural state of the vegetation, the landor any waters or which may be prescribed;

The land practices and other activities with whichapplicants are concerned are set out in the affidavit ofMr.Cooper as follows:

a) the grant of rights of occupation and theallocation of sites within the coastalconservation area by individual chiefs,

headmen to private individuals which resultin effect to a disposal of the land in questionfor a relatively small consideration;

b) the construction of shacks, dwellings andother structures on such sites aforesaidresulting in environmental degradation anddetracting from the aesthetic qualities ofthe coastal conservation zone;

c) the construction of roads, pathways andtracks along cliff edges through forests andother environmentally sensitive areascausing permanent damage to such areasand which again detract from theenvironmentally aesthetic qualities of thecoastal conservation zone;

d) the insensitive and unsustainableexploitation of the resources in such areas.

These practices occur along and within almost theentire Transkeian coastal conservation zone establishedin terms of the Decree. In some instances, in return forthe allocation of a site to a particular individual, theheadman involved was paid an amount in the order ofapproximately R200 together with a bottle of brandy.Neither chiefs nor headmen have authority to allocatesites.

First respondent admits all these averments.

Applicants have set out in great detail specific instancesof such abuses, which have been and are occurringwithin areas falling within the coastal conservationzones. The abuses are graphically illustrated in thephotographs annexed both to the founding affidavitand to the replying affidavit attested to by thirdapplicant, Mr. Mac Robert. The destruction of naturalvegetation; of indigenous bush; of coastal dunes andforest; and of mangrove areas, in order to clear theway for construction to take place, is clearly depicted.It is clear therefore and this is not denied by therespondents that considerable and irreversibleenvironmental degradation of the Transkei coast within the coastal conservation zone has been and wasoccurring at the time of the institution of theseproceedings on 7th September 1995 in blatantcontravention of the provisions of S. 39 of the decree.

Second applicant avers in his affidavit that he has beenboth personally and in his capacity as conservationdirector of first applicant closely associated with andinterested in the environmental and nature conservationpriorities along the wild coast for more than 20 years.He was the chief architect of a report published byfirst applicant during April 1977 at the request of theTranskei government in which a preliminary survey

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of the wild coast was undertaken in order to assist thegovernment with its development plans. During 1992,first applicant was retained by then Transkeigovernment to compile a survey of Transkei forests,including all the coastal forests, and second applicantwas again involved in the publication thereof.

Because of the concern of the applicants at theunabated environmental degradation observed by them,they together with certain others instructed theirattorneys to address a letter on 16th May 1995 to interalia, first, second and third respondents in whichattention was drawn to the unlawful practices whichwere occurring and in which the respondents wererequested to take the requisite action in order to put ahalt to such practices. On 17 May 1995, fourthapplicant, Mr. Taylor and his attorney Mr. Ridl,attended a meeting at Bisho with third respondent,Minister Delport at which inter alia, third respondentindicated that he wished to cooperate with the effortsmade by applicants to halt the unlawful practices butthat he had no success since taking office in preventingthem. It was agreed that Mr.Ridl would prepare amemorandum for third respondent, detailing the lawapplicable and setting out the steps which could betaken by him. Such a memorandum was duly preparedand delivered to third respondent. Mr. Ridl referredtherein specifically to s 39 of the Decree and urgedinter alia that criminal prosecutions should be institutedwithout delay against identified offenders.

Prior to the meeting with third respondent, the thirdapplicant, Mr. Mac Robert had met with secondRespondent Premier Mhlaba who had stated in relationto the destructive activities taking place that theapplicants should ‘stop the vultures.’

Applicants aver that despite all their efforts to persuadefirst, second and third respondents to comply with theobligation to enforce compliance with the provisionsof s 39 of the Decree the respondents have not done soand that they are accordingly obliged to seek the reliefset out in the notice of motion.

It is common cause that the administration of Chapter7 of the Decree, within which falls s 39, is vested infirst respondent and only first respondent chose to filean affidavit in opposition to this application. In thisaffidavit, attested to by Mr. Botha a legal administrationofficer in the employ of first respondent’s department,it is averred that the applicants have not brought theapplication in good faith and that the applicationamounts to an abuse of the process of court in thatapplicants were aware or should have been aware ofthe recommendation made by first respondent during

May 1995 to the effect that a task group be establishedto address the concerns of the applicants.

The Eastern Cape Coastal Development Task Groupin the formation of which Mr. Botha avers the cottageowners association amongst others was instrumental,held its first meeting on 14 August 1995 and the cottageowners association of which third applicant is amember was there represented by fourth applicant. Thebrief of the task group as set out in Mr. Botha’s affidavitis to address inter alia the following issues:

1. Determining and drafting appropriate amendmentsto the Environment Conservation Act 73 of 1989to enable it to apply in the former Transkei andCiskei.

2. Establishing a sub committee to identify andproceed with appropriate action to assign relevantdecrees to the eastern cape provincial government.

3. Making recommendations regarding thereplacement of decrees with relevant sections ofthe environment conservation act.

4. Assisting the Eastern Cape government to direct aformal request to the department of environmentalaffairs for the president to assign relevant decreesthereof to the eastern cape provincial government.

5. Undertaking a survey of the coast line to determinethe number, position, state and ownership of:i) legal cottages;ii) Illegal cottages;iii) Other developments.

6. Preventing data to the relevant authorities withregard to possible legal action against illegaloccupants of coastal sites.

Mr. Botha refers further to the fact that certain actionhas been taken by the first respondent relating to theinstitution of Criminal proceedings in the Port St.John’s magistrate’s court against certain persons inrespect of alleged contravention of S. 39 of the Decree,as well as an application for an interdict brought on31st October, 1995 to the Transkei provincial Divisionby first respondent against nine respondents (includingthe fourth respondent in these proceedings). He statesthat other applications for interdicts against illegaloccupants of other sites along the Wild Coast will soonbe launched.

In reply, the applicats deny that they were or shouldhave been aware of the recommendation allegedly

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made by first respondent during May 1995, in that nopublic reference to such recommendation was madeby the first respondent either in the Parliamentarydebate on his department or elsewhere. In this regardit appears from the minutes of the first meeting of thetask group that such recommendation was containedin a letter written by first respondents to thirdrespondent. Applicants admit that on 13th July 1995,fourth applicant was invited to be a member of theTask Group, but allege that this was the first intimationany of the applicants had concerning the establishmentthereof. They point out that despite their wealth ofexperience and knowledge of the Transkei Coast line,neither first nor second applicants were invited toparticipate in the affairs of the Task Group. They allegefurther that the action taken by first respondent in orderto enforce compliance with S.39 of the Decree wasonly taken after institution of these proceedings. Theyaver that the unlawful development taking place in thecoastal conservation zone has actually increased sincethe institution of these proceedings and furnish details,again supported by photographic evidence of illegalbuilding activities which occurred at various placesalong the wild coast during the month of October toDecember 1995 immediately prior to the filling ofreplying affidavit and in respect of which firstrespondent has taken no action. They deny thereforethat the application constitutes an abuse of theproceedings of the court.

At the commencement of the hearing of the application,I was informed that an agreement had been reachedbetween applicants and the second and thirdrespondents, who were concerned that the litigationshould be resolved and that proper communicationbetween themselves and applicants should be restored.The terms of that agreement are not relevant to thedetermination of this application. The application thenproceeded against first and fourth to seventhrespondents. Although I was informed by both Mr.Gauntlet who with Mr. Vahed appeared for applicantsand Mr. Moerane who with Mr. Pakade appeared forthe first respondent that fourth to seventh respondenthad, to the best of their knowledge, not entered anappearance to oppose the application, I have sincediscovered whilst in the course of preparing thisjudgement just such a notice not forming part of theindexed papers. Fourth to seventh respondents did nothowever file any opposing papers nor were theyrepresented at the hearing of the application. In thecircumstances, it can be taken that they abide by thedecision of the court.

APPLICATION FOR RECUSAL

Before commencement of argument, Mr. Moeraneinformed me that he had instructions to apply for myRecusal from the case. He stressed that making theapplication he was acting on the specific instructionsof Government Attorney, Mr. Jika, and that theapplication involved no imputation upon my integrity.After hearing argument in this regard I refused theapplication for my Recusal and indicated that myreasons for so doing would follow. These then are myreasons:

The law in respect of the test for bias has recently beensettled in the case of BTR Industries South AfricaLtd. and others v. Metal and Allied Workers’ Unionand another 1992 (3) SA 673 (A). At 694 F-695BHoexter JA stated:

In R v. Chondi and another 1933 OPD 267 Krause JPmade the following observations (at 271) which in thiscountry are as pertinent now as they were some 60years ago:

“ It is a matter in of the gravest public policythat the impartiality of the courts of justiceshould not be doubted, or that the fairness ofa trial should not be questioned; other wisethe only bulwark of the liberty of the subject,in these times of revolutionary tendencieswould be undermined.”

It is the right of the public to have their cases decidedby persons who are free not only from fear but alsofrom favour. In the end the only guarantee of impartiallyon the part of the courts is conspicuous impartiality. Toinsist upon the appearance of a real likelihood of biaswould, I think cut at the very root of the principle deeplyembedded in our law that justice must be seen to bedone. It would impede rather than advance the dueadministration of Justice. It is a hallowed maxim thatif a judicial officer has any interest in the out come ofthe matter before him, he is disqualified no matter howsmall the interest may be. See in this regard the remarksof Lush J. in Sergeant and others v Dale (1877) 2 QBD558 at 567. The law does not seek in such a case tomeasure the amount of this interest. I venture to suggestthat the matter stands no differently with regard to theapprehension of bias by a lay litigant. Provided thesuspicion of partiality is one which might reasonablybe entertained by a lay litigant, a reviewing court cannot,so I consider, be called upon to measure in a nice

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balance, the precise extent of the apparent risk. Ifsuspicion is reasonably apprehended, then that is anend to the matter. I find my self in complete agreementwith what was forcibly stated by Edmund Davies LJin the Metropolitan properties case supra at 314C-D:

“With profound respect to those who have propoundedthe real likelihood test, I take the view that therequirement that justice must manifestly be doneoperates with undiminished force in cases where biasis alleged and that any development which appears toemasculate that requirement should be stronglyresisted."

With these remarks in mind I turn to consider the meritsof the application. The relief sought by applicants isinter alia, the first respondent to enforce the provisionsof the Decree, more especially in relation to the illegalbuilding of cottages and roads in the coastalconservation zone: and (ii) a declaration to the effectthat the provisions of the Environment ConservationAct 73 of 1989 apply to the area comprising the formerTranskei in so far as they are not inconsistent with theprovisions of the decree. It is perhaps also relevant toreiterate that third and fourth applicants are lawfuloccupants of cottages on the wild coast and that bothare members of the Cottage Owners Association. I amnot now nor have I been a member of the CottageOwners Association or of the Wildlife Society.

The basis of the application for my Recusal is that I tooam the owner of a cottage on the wild coast and thatthis fact may cause the first respondent reasonably toentertain the suspicion that I will be biased against it.I have deliberately placed the word ‘lawful’ inparenthesis as the gravamen of Mr. Moerane’ssubmission appears to be that because the legality ofthe occupation of certain cottages on the Wild Coastis under scrutiny not only by first respondent but alsoby the well-known Health Commission into unlawfulland dealings in the Eastern Cape my right title to thecottage which I occupy may well be under threat. Inthese circumstances a reasonable perception might becreated that I could not apply my mind objectively tothe issues raised by the application. I do not intent toenter in to a debate as to the legality or otherwise ofmy occupation of the cottage in question which to thebest of my knowledge was constructed more than 60years prior to the promulgation of the decree althoughI have no reason to doubt such legality. In my viewMr. Moerane’s argument bears the seeds of its owndestruction. Having regard to the nature of the mainrelief sought herein, namely, the enforcement of theprovisions of the decree against illegal occupiers andbuilders of cottages, it seems to me that the only parties

who could remotely have cause to complain aboutpossible partiality are the applicants. Were myoccupation of the cottage to be illegal in terms of thedecree, the mandamus sought by applicants wouldobviously be inimicable to my own interests.

In any event, leaving the argument as to legality aside,I have no doubt what so ever that the mere fact that Iam the occupier of a cottage on the Wild Coast in theabsence of anything more, such as my membership ofthe Cottage Owners Association could not in any wayin the circumstances of this case, give rise to areasonable apprehension of bias on my part by firstrespondent. Compare Bromley London BoroughCouncil v. Greater London Council and Another [1982]1 ALLER 129 (CA) at 131j-132a. Accordingly theapplication falls to be dismissed.

LOCUS STANDI

The first issue raised and one, which occupied notinconsiderable part of applicant’s heads of argument,concerned the question of Locus Standi. Despite theearlier attitude of first respondent as evinced in Mr.Botha’s affidavit, Mr. Moerane in his heads of argumentconceded that applicants had locus Standi. As Iunderstand it, this concession was based on theprovisions of s 7(4) (b), read with s 29 of theconstitution of the Republic of South Africa Act 200of 1993. See Van Huysteen and others vs. Ministerof Environmental Affairs and Tourism and others1996 (1) SA 283 (c).

I may mention that in my opinion, there is also much tobe said for the view that in circumstances where theLocus Standi afforded persons by s 7 of the constitutionis not applicable, and where a statute imposes anobligation upon the state to take certain measures inorder to protect the environment in the interests of thepublic, then a body such as the first applicant with itsmain object being to protect the environment in theinterests of the public to promote environmentalconservation in South Africa should have Locus Standi at common law to apply for an ordercompelling the state to comply with its obligations interms of such statute.

In a far-sighted article, ‘The Ecological Norm in Lawor the Jurisprudence of the right against pollution;(1975) 92 SALJ 78 the late professor Barend VanNiekerk stated that the knowledge had then about thenature of environmental pollution and its encroachingdangers to all members of society called urgently for‘a critical re-evaluation of how the existing legal rules

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concerning Locus Standi should be adapted in orderto cope more adequately with the interests of societyin general and each member of society in particular.’

(AT 88) He was of the opinion that the most obvioussolution to the problem of Locus Standi was ‘to regardthe environment as being peculiarly of interest to anymember of society and he continued by saying thatbecause the effect of environmental plight will notspare any member of society in the final analysis, itdid not seem misplaced:

‘in terms of existing legal principles to giveevery member of society the right to protectwhat amounts to his own interest. An adoptionof this line of reasoning will not… erode thebasic principle of our law on which LocusStandi to sue is based namely ‘that no mancan sue in respect of a wrongful act, unless itconstitutes the breach of a duty owed to himby the wrong-doer, or unless it causes himsome damage in law.”

I am well aware that the English law relating to LocusStandi has developed very differently in the SouthAfrican law in this regard. Nevertheless, the Englishcases are instructive and it is interesting to note thatthe requirement in English of law of ‘sufficient interest’has been interpreted as being merely a means ofprotection against ‘busy-bodies’, cranks and othermischief-makers. R v. Inland Revenue CommissionersEx- parte National Federation of Self Employed andSmall Business Ltd. [1982] AC617 at 653 G H. In thesame case at 664C, Lord Diplock stated that there wouldbe ‘a grave lacuna in our system of law if a pressuregroup …or even a single public spirited tax payer wereprevented by outdated technical rules of Locus Standifrom bringing the matter to the attention of the courtto vindicate the rule of law and get the unlawfulconduct stopped.’

In R v. Inspectorate of pollution and another, ex parteGreenpeace Ltd. (No2)[1994] 4 ALLER 329 (QB) thecourt upheld the Locus Standi of the Greenpeaceorganization. At 350e-f, Otton J stated that if he wereto deny standing to Greenpeace, ‘those it representsmight not have an effective way to bring the issuesbefore the court. There would have to be an applicationeither by individual, employee or a near neighbour. Inthis case it is unlikely that either would be able tocommand the expertise which is at the disposal ofGreenpeace. Consequently less well-informedchallenge might be mounted which would stretchunnecessarily the court’s resources and which wouldnot afford the court the assistance it requires in order

to do justice between the people.’

One of the principle objections often raised againstthe adoption of a more flexible approach to the problemof Locus Standi is that floodgates will thereby beopened giving rise to an uncontrollable torrent oflitigation .It is well, however, to bear in mind a remarkmade by Mr. Justice Kirby, president of the New WalesSouth Court of Appeal in the course of an address atthe Tenth Anniversary Conference of the LegalResources Centre namely that it may sometimes benecessary to open the floodgates in order to irrigatethe arid ground below them. I am not persuaded bythe agreement that to afford Locus Standi to a bodysuch as first applicant in circumstances such as thesewould be to open the floodgates to a torrent of frivolouslitigation against the state by cranks. Neither am Ipersuaded, given the exorbitant costs of Supreme Courtlitigation that should the law be so adapted, crankswould indeed flood the courts with frivolousapplications against the state. Should they be temptedto do so I have no doubt that an appropriate order ofcosts would soon inhibit their litigious ardour.

In any event, whilst cranks who attempt to abuse legalprocess do, no doubt, exist, I am of the view that lawyersare sometimes unduly apprehensive and pessimisticabout the strength of their numbers. The meddlesomecrank and busybody with no legal interest in a matterwhat so ever, mischievously intent on gaining accessto the court in order to satisfy some personal capriceor obsession, is in my view, as has been remarkedelsewhere more often a spectral figure than a reality.

Twenty-one years have passed since Professor VanNiekerk’s clarion call for an adaptation of the lawrelating to Locus Standi in environmental matters. Itmay well be that the submissions made by him havecome of age and that the time has arrived for a re-examination of the common law rules of standing inenvironmental matters involving the state and for anadaptation of such rules to meet the ever changingneeds of society. Compare M .M. Corbett ‘Aspects ofthe role of policy in the evolution of our Common Law’{1987} 104 SALJ 52.

The Application for a mandamus against firstrespondent

As will have been seen from the above exposition ofthe facts, the crisp defense raised by the first respondentis that in view of the fact that the task group was toapplicants knowledge, addressing the very issues raisedby this application and that action has in fact been takenby first respondent in regard to these issues, the

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application is unnecessary and amounts to an abuse ofthe process of court.

The court has a general inherent power to set asideproceedings on the ground that they are frivolous andthat they amount to an abuse of the process of the court.In Sher and others v Sadowitz 1970(1) SA 193, CorbettJ (as he then was) reiterated that it is clear that thepower is one that should be sparingly exercised andonly in very exceptional cases and that the court mustbe satisfied before setting aside such a proceeding thatit is as a matter of certainty obviously unsustainable.(At 195C-D).

It appears from the minutes of the Task Group on 14August 1995 that the recommendation for theestablishment thereof was contained in a letter fromfirst respondent to third respondent. In thesecircumstances, it is hardly surprising that applicantsknew nothing thereof until after its formation. What isrelevant however is that fourth applicant was invitedto and did attend the meeting of the task group as arepresentative of the Cottage Owners Association ofwhich third applicant is a member and that theapplicants were therefore aware of the existence ofthe task group prior to the institution of theseproceedings. Applicants aver that the task group’s rolewas advisory only and that at no time did the groupeven suggest that decisive action be taken againstillegal land practice users.

They aver further that the fact that the Task Groupmet only once a month is indicative of the ineffectiveand totally inappropriate manner in which the urgentproblem was being addressed. In my view, far fromthese proceedings being an abuse of the process of thecourt, a perusal of the minutes of the meeting of theTask Group on 14th August 1995 bears out applicants’averments. It appears therefrom that the main functionof the Task Group was ‘to advice the various ministerson the appropriate steps to be taken regarding problemsin the coastal areas. That the main functionwas indeed advisory is borne out by theminutes themselves. At that meeting, fourth applicantspecifically stated that, whilst there was a need torationalize legislation, it was essential that urgentaction be taken against offenders immediately so asto prevent the proliferation of illegal cottages estimatedas comprising up to 300 units. He pointed out that towait until the legislation had been rationalized wouldbe disastrous as by then, valuable coastal resourceswould have been irreparably damaged. His speechelicited an expression of appreciation from thechairman. A list of actions was determined at theconclusion of the meeting in which every action to be

taken was accorded a priority ranging from 1 to 5 aswell as medium term. Not surprisingly, the issue of apress release informing the public of the establishmentof the Task Group and of its activities was accordedpriority ‘number one. Despite fourth applicant’simpassioned plea to take action and not to wait for therationalization of legislation, such rationalization wasaccorded priority ‘number two. Only then was priority‘number three’ referred to in the following somewhatstartling terms:

"Determine political support from proposed actionagainst owners of cottages erected illegally." In thisregard the action to be taken was stated to be:

Present proposed “test case” legal actionagainst the owners of 20-sea side residentialsites on state land close to the high water marknear Manteku store in the MtambelalaAdministrative Area, Lusikisiki district to theMinister of Land Affairs; Eastern CapeAgriculture and Conservation andEnvironmental Affairs and Tourism todetermine support for initiative.

What exactly constituted ‘political support’ and whysuch ‘political support’ had to be determined beforeaction could be taken to stop the blatantly illegaldegradation of the coastal conservation zone of thewild coast was not explained, nor has it since beenexplained by Mr. Botha who participated in the meetingof the task group. It is difficult to understand why inthe face of overwhelming evidence of illegal landpractice uses, it was considered necessary to determine‘political support’ for action to be taken to put a stopthere to and why there should have been a remarkableand disturbing reluctance immediately to invoke theprovisions of s 39 of the Decree. It is telling that nowhere in his affidavit does Mr. Botha state why it wasnecessary to adopt such a ‘kidglove’ approach nor doeshe state that first respondent was logistically unableto enforce the provisions of S. 39.

Priority ‘number four’ in terms of the ‘list of actions’was stated as being to ‘inform relevant authorities ofthe illegal activities to stop the issuing of certificatesor identification of sites.’ The action required in respectthereof was stated as follows:

‘Inform via Minister of Environmental Affairsand Tourism the Eastern Cape Premier; EasternCape Minister of Agriculture and conservationDepartment of Land Affairs; Department ofJustice of current problems and request thatall illegal activities perpetuated in the erection

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of illegal cottages and alienation of land beceased.’

In these circumstances, where ‘political support’ forlegal action had to be first determined and wherepersons illegally allocating sites, sometimes in returnfor little more than a bottle of brandy were to berequested to stop doing so, applicants’ averred senseof frustration at the lack of any concrete action in termsof S. 39 of the Decree becomes palpable. Theoverwhelming sense to be gained from reading theminutes of the Task Group is that of the slow andinexorable grinding of wheels across a bureaucraticlandscape, regardless of the urgency of the situation.My above comments should not be misconstrued. TheTask Group may well be performing excellent work inregard to other matters, such as the eventualrationalization of applicable legislation. My commentsrelate only to its performance in relation to the TaskGroup, a non-statutory advisory body of uncertainnature and duration. Its difficulties in this regard areperhaps understandable. The fact remains however,that first respondent’s opposition to this application isbased largely upon the existence of the Task Groupand its actions and these actions have, in my view,fallen woefully short of establishing that the provisionsof S. 39(2) of the Decree were and are being enforcedby first respondent.

It is also clear from the papers that it was only afterthe institution of this application that first respondenttook the action referred to by Mr. Botha in his affidavit.In the light of the minutes of the Task Group, theinference is inescapable that the launching of theapplication galvanized first respondent into such actionas it eventually took. The action taken by firstrespondent does not, however, in any way address allthe abuses raised by applicants in their papers.I am satisfied in all the circumstances thatapplicants were entitled to approach the court for relief.In granting relief to the applicants, the court is notcrossing the boundary between what is administrationwhether good or bad, and what is an unlawful failureto perform a statutory duty by the body or personcharged with performance of that duty.

In my view, however, the relief sought by applicantsin para 1(a) of the notice of motion is couched in termsthat are much too wide and vague. I am therefore notprepared to grant an order in terms of para 1 (a) of thenotice of motion. Applicants’ case was premisedthroughout on land practice uses in contravention of s39 of the Decree. In my view, therefore applicants areentitled only to an order in terms of para 1 (b), namelythat first respondent enforce the provisions of s 39(2)

of the Decree. Such an order is easily capable ofcompliance and as I have stated above, no where hasfirst respondent averred that it lacks the logisticalmeans to enforce those provisions.

THE APPLICATION FOR A DECLARATION

This aspect of the case can, in my view, be very shortlydisposed of. It is common cause that before 27th April1994, Decree 9 applied within the area which comprisedthe then Republic of Transkei and that the EnvironmentConservation Act 73 of 1989 applied within the areawhich then comprised the Republic of South Africa.Mr. Gauntlett submitted, with specific reference to S.235(6) of the constitution of the Republic of SouthAfrica Act 200 of 1993, that the EnvironmentConservation Act 73 of 1989 applied to the area that was formerly the Republic of Transkei.

In my view however, Mr. Moerane correctly submittedthat the relevant section of the constitution Act in thisregard was s 229, which provides:

Continuation of existing laws subject to thisconstitution, all laws, which immediately before thecommencement of this constitution were in force inany area, which forms part of the national territory,shall continue in force in such area, subject to anyrepeal of such laws by a competent authority.

‘Section 229 provides a constitutionalfoundation for the continuation of the “oldlaws” after the coming into force of theconstitution… the continuity given by S. 229is applicable only to areas in which such lawswere in force prior to the commencement ofthe constitution.’

Clearly therefore, until such time as the EnvironmentConservation Act 73 of 1989 is applied by a law ofcompetent authority to the whole of the nationalterritory it shall continue to apply only to that part ofthe national territory in which it was in forceimmediately before the commencement of theconstitution.

Section 235(6), read with s 126(3), relied upon by Mr.Gauntlett, deals with the question of executiveauthority and does not purport to extend the territorialapplication of any laws which immediately prior tothe commencement of the constitution were in forcein any particular area forming part of the nationalterritory.

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The application for a declaration in terms of Para 2 ofthe notice of motion must accordingly fail. Ifurthermore decline Mr. Gauntlet’s invitation to granta declaration incorporating certain submissions madeby Mr. Botha during the course of this presentation atthe first meeting of the Task Group on 14th August1995. This was not the relief sought by applicants andneither first respondent, nor Mr. Botha in particularwere required to apply their minds thereto.

In these circumstances, the relief sought by applicantsin terms of para 2 and 3 of the notice of motion mustbe refused.

The interdict sought against fourth to seventhrespondents.

As I have stated above, these respondents, despitehaving entered an appearance to oppose the application,filed no papers and did not appear at the hearing.Accordingly, they have not denied applicants’allegations concerning the wrongful and unlawfulallocation by them of sites to certain persons. Thisbeing so, applicants are entitled to an order against themin terms of para 4 of the notice of motion.

COSTS

It is clear that the primary focus of the application wasthe interdictory relief sought against the variousrespondents in differing respects. The application fora declaration constituted a relatively insubstantialcomponent of the application as a whole. In thesecircumstances ,although applicants have failed in theirapplication for a declaration they have neverthelessachieved substantial success in the application as awhole and there is accordingly no reason why theyshould be deprived of any part of their costs againstfirst respondent. First respondent will pay such costsjointly and severally with second and third respondentswho in terms of their agreement with applicants agreedto pay such costs. Counsel agreed that the costsof two counsels should be allowed.

In so far as fourth to seventh respondents are concerned,no order for costs was sought against them nor in myview would any such order be appropriate in thecircumstances of this case.

It remains however to deal with the question of thewasted costs incurred in consequence of thepostponement of the application on 18th April 1996which costs were reserved for later decision. It appearsfrom the papers that the Registrar at applicants’ requestspecifically allocated the date of 18th April 1996, which

fell during the court recess, after consultation with thejudge president. A notice of set down of the matterwas then served on the Government Attorney byapplicants’ attorney on 3rd April 1996. Mr. Jika, theGovernment Attorney, states in an affidavit that thematter was set down, for hearing on that date withoutany prior consultation with himself or first respondent.On receipt of the notice of set down he immediatelycommunicated with his counsel only to be advised thatthey would not be available as senior counsel was outof the country. He then advised applicants’ attorney onrecord, Mr. Poyser that the date was not suitable.According to Mr. Poyser, this letter only came to hisattention on 9th April 1996 after Easter weekend. Mr.Jika telephoned Mr. Poyser on 9th April 1996 andreiterated his concern that the matter had been set downduring recess without prior consultation with him.According to Mr. Jika to liaise directly with applicants’instructing attorneys so as to avoid unnecessary delays.

Mr. Jika, accordingly on 16th April 1996,again wrote to Mr. Poyser advising him that an application would be made forthe postponement of the matter on 18th April 1996.Mr. Poyser replied stating that the application wouldproceed. On 18th April 1996, Mr. Jika filed a substantiveapplication for postponement after 10:00 am. Thelateness of the application, which contained factualaverments, which required to be answered, made apostponement unavoidable. In my view the fact thatMr. Moerane was not available to argue the applicationon 18th April 1996 would not normally have constituteda valid ground on which to seek a postponement. Mr.Jike was also dilatory in failing to launch thesubstantive application for a postponement on failingto receive a positive reply to his request thereforeon 9th April 1996. On the other hand, in requesting thepermission of the Judge President for the hearing ofthe matter during the court recess, the applicants wereseeking an indulgence to suit the convenience ofthemselves and their counsel. In these circumstances,applicants in my view have consulted with respondentsconcerning the suitability of the proposed date ofhearing.

I am accordingly of the view that the most appropriateand fair order would be that each party pay their owncost in respect of the hearing on 18th April 1996.

THE ORDER

The following order is therefore made:1. That the first respondent be and is hereby ordered

forthwith to take such steps and to do such thingsas may be necessary to enforce the provisions of

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section 39(2) of the Decree 9 promulgated by theformer Government of Transkei on 24th July 1992.

2. That save to the extent that they may be permittedin terms of any law, the fourth, fifth, sixth andseventh respondents be and are herebyrestrained and interdicted from granting any rights in land which formed part of the territorythat formerly constituted the Republic of Transkei.

3. That first respondent is ordered to pay the costs ofthis application jointly and severally with second

and third respondents, the one paying the others tobe absolved. Such costs shall exclude the reservedcosts of the hearing on 18th April 1996 in respectof which each party shall bear their own costs.

Applicants’ Attorneys : Ridl-glavovic, Westville; JohnC Blakeway & Leppan, Inc, Umtata, First, Secondand Third Respondents’ Attorney: GovernmentAttorney, Umtata.

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REASONS FOR JUDGMENT OF ODOKI, CJ.

This is an election petition filed by the petitioner Col.(Rtd.) Dr. Besigye Kizza against the 1st RespondentMr. Museveni Yoweri Kaguta and the 2nd Respondent,the Electoral Commission, challenging the results ofthe Presidential Election held on 12th March 2001. The2nd Respondent organized those elections and declaredthe 1st Respondent the winner. The petitioner seeksthis court to declare: that Museveni Yoweri Kagutawas not validly elected as President, and that theelection be annulled.

The petition was brought under the PresidentialElections Act 2000 (No.17 of 2000) and thePresidential Elections (Election Petitions) Rules 2001(SI No.1 3 of 2000); Article 104 of the Constitutionand Section 58 of the Presidential Elections Act 2000provide that any aggrieved candidate may petition theSupreme Court for an order that a candidate declaredby the Electoral Commission as President was notvalidly elected, within ten days after the declarationof results. The preparation for the return of the 1st

Respondent probably for campaign. The 1st respondentwas entitled under the Act to retain his securityfacilities as Head of State. On this basis, it cannot besaid that the deployment of PPU in Rukungiri is illegal.

PPU exceeded their powers by engaging in intimidation and harassment Petitioner’s Agents andsupporters. The question is whether the 1st respondentis responsible for their actions. There was no evidenceadduced to prove that the 1st Respondent knew andconsented to those actions or approved of them. It maybe said that as Head of State, guarded by the PPU, he ought to have known what the PPU was doing inRukungiri. That may be a good moral judgment orexpectation but is not evidence or fact. The 1st

Respondent was also a candidate who was busycampaigning throughout the country. There was noevidence that he was responsible for deployment of-the PPU. Therefore it cannot be assumed that he knewor consented to their actions. The Petitioner failed to

discharge the burden of proof to my satisfaction onthis allegation.

Issue No.5: Reliefs to the Parties

Issue No.5 was what reliefs are available to the parties?In the Petition, the petitioner prayed for the followingreliefs:

“4. Therefore your Petitioner prays that thisHonorable Court declares:(a) That Museveni Yoweri Kaguta was notvalidly elected as President.(b) That the election be annulled5. The Petitioner prays for costs of thispetition.”

In view of my findings on Issue No.3 and No.4 that thePetitioner had failed to satisfy me that the non-compliance with the provisions and principlesaffected the results of the election in a substantialmanner and that the 1st respondent committed anyillegal practice or offence, I held that the Petition bedismissed. Consequently the reliefs prayed for in para(a) and (b) were refused.

On the question of costs, Dr. Byamugisha learned leadcounsel for the 1st respondent submitted that the 1st

Respondent be awarded costs of the petition and thepetition had been dismissed. He contended that underSection 27 of the Civil Procedure Act, which governsthe award of costs, costs of any action should followthe event unless the Court, for good reasons, ordersotherwise. In, his petition the costs should follow theevent of dismissing the petition by awarding thesuccessful party his costs. It was his submission that aperson coming to court should weigh the consequencesof his action to stop frivolous petitions.

Mr. Deus Byamugisha learned counsel for the 2nd

Respondent agreed with the submission of Dr.Byamugisha that costs normally follow the event andtherefore, since the Petition was dismissed, the Petitioner

COL (RTD.) DR. BESIGYE KIZZA

VERSUS

MUSEVENI YOWERI KAGUTA AND ELECTORAL COMMISSION

ELECTION PETITION No. 1 of 2001: The Supreme Court of Uganda at Kampala

(Coram: Odoki, CJ; Oder, JSC; Tsekooko, JSC; Karokora, JSC and Mulenga, JSC.):July 6th 2001

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should pay the costs of the litigation. He asked for acertificate of two advocates.

On the other hand, Mr. Balikuddembe learned leadcounsel for the Petitioner contended this was a historicand unprecedented case, brought by the Petitioner anaggrieved party in the interest of Uganda, for thedevelopment of electoral law. He argued that thePetitioner had succeeded on some of the issues framedtouching on the non-compliance with the provisionsof the law. It would be unfair, he contended, to rewardthe 2nd Respondent for failure to comply with the law.He argued further that litigants should be allowedaccess to courts when aggrieved.

He concluded that the petition was in public interest.He submitted that the 1st Respondent should beresponsible for the intimidation which occurred, whichforced the Petitioner to appear before this Court. Hetherefore prayed that each party bears its own costs.

It is well settled that costs follow the event unless thecourt orders otherwise for good reason. The discretionaccorded to the court to deny a successful party costsof litigation must be exercised judicially and for goodcause. Costs are an indemnity to compensate thesuccessful litigant the expenses incurred during thelitigation. Costs are not intended to be punitive but asuccessful litigant may be deprived of his costs onlyexceptional circumstances. See Wambugu vs. PublicService Commission (1972)E.A. 296.

In awarding costs, the courts must balance the principlethat justice must take its course by compensating thesuccessful litigant against the principle of not ragingpoor litigants from accessing justice through award ofexorbitant costs.

In the present petition, I am of the considered opinionthat the interests of justice require that the Courtexercise its discretion not to award the costs to theRespondents. I agree with Mr. Balikuddembe that thiswas a historic and unprecedented case in which apresidential candidate who is a serving Presidentwas taken to court to challenge his election. Thepetition raises important legal issues, which are crucialto the political and constitutional development of thecountry. In a sense, it can be looked at as public interestlitigation. It promotes culture of peaceful resolutionof disputes. The petition was not frivolous or vexatiousas the Petitioner succeed on issue No.1 and No.2. Thepetition was therefore of great public importance inthe history of Uganda.

In several cases of significant political andconstitutional nature, this Court has ordered each partyto bear its own costs. This was done in the case ofPrince J Mpuga Rukidi v. Prince Solomon Iguru andOthers. C.A. 18/94 (SC) where right of the King ofBunyoro to succeed to the throne was unsuccessfullychallenged. In the case of Attorney General v. MajorGen.David Tinyefuza, 51. App. No.1 of 1997 (SC)the party agreed that each party bears their costs.The position appears to be the same in India: seeCharan lal Sahu Others v. Singh (1985) lRC Const.31.

In Prince Mpuga Rukidi v. Prince Salomon Iguru(supra) I said,

“In this case the learned judge applied thegeneral rule in exercising his discretion infavor of the successful party, the respondents.He did not consider the special nature of thecase and the relationship between the partiesbefore he came to his decision on costs. Thiswas an important case, which settled thequestion of succession to the throne ofBunyoro-Kitara and therefore, paved the wayto the restoration of the institution ofTraditional Ruler in Bunyoro-KitaraKingdom. It was a matter of great publicimportance. The fact that the question hasbeen settled also means that there is need forreconciliation among the contestants for thewell being of the Kingdom. In thosecircumstances, I agree that each party shouldbear its own costs here and in the court below."

What I said in the Iguru Case applies with equal forceto this Petition.

Accordingly, it was my view that each party shouldbear the costs of litigation in this petition.For the above reasons, I dismissed the Petition andordered that each party bears its own costs.

Dated at Kampala this 6th day of July 2001.

B. J. ODOKIREASONS OF TSEKOOKO. JSC. FORJUDGEMENT.

Col. (RTD) Dr. Besigye Kiiza, the Petitioner, this yearcontested presidential election with five othercandidates. The others were Awori Aggrey, BwengyeFrancis, Karuhanga K.Chaapa, Kibirige Mayanja

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Muhammad and Museveni Yoweri Kaguta, the firstrespondent. The contest was for the office of thePresident of the Republic of Uganda. The ElectoralCommission, the second respondent, which organizedthe election, declared the first respondent the winner.He polled 5, 123,360,votes representing (69.3%) ofvalid votes cast. The petitioner who polled 2,055,795votes (27.8%) was dissatisfied with the election result.On 23rd March 2001, he petitioned this Court and setout many complaints as the basis for his dissatisfaction.The petitioner asked the court to declare:- (a) ThatMuseveni Yoweri Kaguta was not validly elected asPresident.

It looks to me that because of the drafting of theprovisions of the Movement Act, 1997, I venture tosuggest that many officials of the movement are agentsof the official movement Presidential candidate. Thereis evidence that the first respondent was officiallyurged, and nominated by the National MovementConference to contest the presidential election.

It appears to me that if the National Conference urgedthe first Respondent, who happens to be its chairman,to contest the Presidential election, the structure ofthe movement under the provisions of the MovementAct 1997, makes all officials of the movementincluding, Members of Parliament, agents of the firstRespondent: See particularly sections 4, and 5.Therefore I think that wrongful conduct of such agentsbind the candidate.

Again on the authorities reviewed, I am unable to saythat members of the PPU and UPDF who campaignedfor the first Respondent are not agents of the firstRespondent for whose acts he is liable. I find it difficultto believe that the acts of intimidation and harassmentmeted out to agents, representatives and the supportersof the Petitioner in the districts of Ntungamo, Kabale,Rukungiri, Kanungu, Kamwenge and others by PPUcould not for one moment or another reach the ear ofthe 1st Respondent and that he would not react andcorrect the, situation. To hold otherwise would amountto a travesty of election justice.

For the foregoing reasons, my answer to both legs ofthe fourth issue is in the affirmative in that the 1st

respondent committed an illegal practice when he saidthat the petitioner is a victim of AIDS. Second hecommitted offences under the Act by (a) givingmotorcycle to Kabuga, (b) ordering increase of salaries,stopping cost sharing and causing the signing ofcontracts during campaign period.

In our decision of 21/4/2001, we ordered that each partyshould bear its own costs and promised to give ourreasons later. I now give my reasons to justify the orderof costs.

Counsel for the respondents relied on the proviso toS.27 (1) of the Civil Procedure Act and asked that therespondents be awarded costs. Dr. Byamugisha indeedasked that we should certify costs for 13 advocates.He argued that if we do not award costs to therespondents, we would be encouraging future losersto file frivolous petitions. Dr. Byamugisha was unableto provide authority for the suggestion that we canaward costs for 1 3 advocates in a petition such as thisone.

Mr. Deo Byamugisha, Ag. Director for Civil Litigation,on behalf of 2nd Respondent, argued that awarding costswould discourage losing candidates from petitioning.He asked for costs with a certificate for two counsel.

Mr. Balikuddembe, counsel for the petitioner, arguedthat we should order for each party to bear its owncosts contending that this litigation is important,historic and unprecedented. That the Petitionerchallenged the election results in the interest ofUgandans and in the interest of the development ofthe electoral law. In his view, the first Respondent waspartly to blame and that is why the Petitioner institutedthis petition. I do not seem to remember counselelaborating on this last point.

By section 27(1) the Civil Procedure Act, this Courthas power to determine how costs are to be paid. Theproviso to the subsection states that the costs of anyaction, cause or other matter or issue shall follow theevent unless the court or judge for good cause ordersotherwise.

Neither counsel for the Petitioner nor for the twoRespondents alluded to sub-rule (1) of Rule 23 of thePresidential Elections (Election Petitions) Rules, 2001(S.I. 2001 No.1 3). It reads as follows: -

“AII costs of and incidental to the presentationof the petition and the proceedings consequenton the petition shall be defrayed by the partiesto the petition in such manner and in suchproportions as the Court may determine.”

It appears to me that in this petition the order as tocosts must be made under authority of this sub-rule.The sub-rule gives this Court wide discretion in regardto orders as to costs. Incidentally, the sub-rule does

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not suggest, nor does the proviso to S. 27 (1) suggest,that costs should be awarded against any party by wayof punishment. Punishment is what the submissionsof the Respondents’ counsel suggested.

I agree with Mr. Balikuddembe that this electionpetition is important in its own right. I go further andsay that cases involving election petitions are importantin themselves since they enable the Courts which areindependent institutions in this country to makevaluable decisions on the operations of the democraticprinciples in this country. I do not accept the views ofDr. J. Byamugisha and Mr. Deo Byamugisha that anaward of costs should be made so as to discouragelosing candidates from instituting petitions. Orders ofaward of costs must be made judicially.

I think that orders for award of costs should be madedepending on the facts of each case. This is implicit inRule 23(1) (supra). In election petitions, costs mustnot be awarded in such a manner as to inhibit futurepetitioners, who may have genuine complaints thatshould be investigated by courts, from taking suchcomplaints to courts. It is of the essence of a workingdemocracy that grievances arising from electionsshould be investigated by independent courts. I derivesupport for this view from the Indian case of CharanLal Sahu & Ors vs. Singh (1985) LRC (Const.) 31.In the election for the office of President of India, heldon 12th July 1982, 36 prospective candidates filednomination papers. The petitioners included CharanLal Sahu and Nem Chandra Jain (two of thepetitioners). The Returning officer accepted twonominations, excluding these two petitioners, and on15th July, 1982, he declared that the Respondent hadbeen elected. A number of petitions were filed askingthe Supreme Court of India to annul the election onvarious grounds. Under a certain Act of Parliament ofIndia, an election petition may be presented by twentyelectors or “by any candidate at such election” andS.13 (a) thereof, provided that “candidate” means aperson who has been or claims to have beennominated as a candidate.”

Preliminary objection was taken that two of thepetitioners, i.e., Charan Lal Sahu and Nem ChandraJain, had not been candidates at the election andtherefore lacked locus standi to file their petitions. Thepetitioners submitted that, even if they were not dulynominated, they could claim to have been dulynominated and therefore to be eligible to present theirpetitions.

The Supreme Court upheld the preliminary objectionand struck out the two petitions because they lacked a

cause of action. The Court further observed that (atpage 38):

“It is regrettable that election petitionschallenging the election of the high office ofthe President of India should be filed in afashion as cavalier as the one thatcharacterizes these two petitions. The petitionshave an extempore appearance and not evena second look, leave alone a second thought,appears to have been given to the manner ofdrafting these petitions or to the contentionsraised therein. In order to discourage the filingof such petitions, we would have been justifiedin passing a heavy order of costs against thetwo petitioners. But that is likely to create aneedless misconception that this Court, whichhas been constituted by the Act as the exclusiveforum for deciding election petitions wherebya Presidential or vice-presidential election ischallenged, is loathe to entertain suchpetitions. It is of the essence of the functioningof democracy that elections to public officesmust be open to the scrutiny of an independenttribunal. A heavy order of costs in these twopetitions, howsoever justified on their ownfacts, should not result in nipping in the bud awell-founded claim on a future occasion.”

The two petitions before the Indian Supreme Courtcould be described as frivolous and vexatious. Andyet the Supreme Court found no need to order costsagainst the two petitioners.

In my view, the present petition is nowhere near thetwo. The present petition was well founded. Adoptingthe reasoning of the India Supreme Court, I think thatordering the petitioner in these proceedings to pay costswould amount to nipping in the bud future well-founded petitions. For these reasons, I agreed that eachparty should bear its own costs.

There have been expressions of concern why we didnot give our reasons on 21/4/2001. All sorts of opinionshave been put forward. My own hope is that those whohave shown concern will be objective enough tounderstand the reasons I have given. Further I hopethat those indulging in disparaging remarks about acourt working on decision of a case will reflect beforecondemning court. Courts are expected to giveconsidered opinions not extempore messages.

For the foregoing reasons, I would uphold the prayersin the petition in that I would declare that theRespondent was not validly elected. I would annul the

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election. I would order that each party bear its owncosts.

For these reasons I did not accept that the petitionshould be dismissed.Delivered at Mengo this 6th day of July, 2001.

J. W. N. TSEKOOKO.JUSTICE OF THE SUPREME COURT.

REASONS FOR THE JUDGMENT OF THECOURT BY KAROKORA, JSC

The Petitioner, Col (Rtd) Dr. Besigye Kiiza, was oneof the 6 candidates who on 12th March 2001 contestedelection to the office of President of the Republic ofUganda. On 14th March 2001 the ElectoralCommission, hereinafter referred to as the 2nd

Respondent, declared Museveni Yoweri Kaguta,hereinafter referred to as the 1st Respondent, asPresident, having polled more than 50% of the totalvotes. The Petitioner petitioned the Supreme Court ofUganda pursuant to Provisions of Article 104 of theConstitution and Section 58 of the PresidentialElections Act 2000, seeking an order that MuseveniYoweri Kaguta, declared elected as President was notvalidly elected and that the said election be annulled.

The Petition was lodged in the Supreme Court Registryon 23/3/2001. Hearing of the Petition commenced on27th March 2001. By virtue of Article 104 of theConstitution and Section 58 of the PresidentialElections Act, the Supreme Court had to inquire intoand determine the petition expeditiously and declareits findings not later than 30 days from the date thepetition was filed.

In my view, I think the petitioner has failed to prove tothe satisfaction of this court that the 1st respondentpersonally or with his knowledge and consent orapproval embarked on the tarmacking and upgradingof the said road net-work with the intention of inducingpeople from those areas to vote for him.

In the result, this complaint must fail.

In conclusion therefore, issue No. 4 must be answeredin the negative.

I must state that it was because of the reasons that Ihave given on each of the issues that led me to holdthat the petitioner had failed to prove his case to thesatisfaction of the court. It was because of the abovereasons that the petition was dismissed.

I now turn to the 5th issue of what reliefs are availableto the parties.

Dr. J. Byamugisha for 1st respondent and Mr. DeusByamugisha for 2nd respondent asked for costs to beawarded to them since the petition had been dismissed.They based their submission on the provision ofsubsection (1) of section 27 of the Civil Procedure Act(Cap 65) which provides that the costs of any actionshall follow the event unless the court or judge shallfor good reason otherwise order.

Dr. Byamugisha submitted that since the petition wasdismissed it should be dismissed with costs. Hesubmitted that there were two Counsel but requiredmany Counsel to assist in dealing, researching forwitnesses and authorities day and night. He asked thatwe should certify costs for 13 advocates. He arguedthat if we do not award costs to respondents, we wouldbe encouraging, people who are defeated in electionpetition to come to court even when their cases arefrivolous and vexatious.

Mr. Deus Byamugisha who appeared for 2nd respondentargued like Dr. Byamugisha that normally costs followthe event, therefore since the petition was dismissed,the petitioner should pay the costs of the litigation. Heasked for costs with a certificate for two.

Mr. Balikuddembe, Counsel for petitioner argued thatin the interest of justice, it should be ordered for eachparty to meet its own costs, because, this was a historicand unprecedented litigation in our legal development.The petition challenged the election on the basis ofnon-compliance with the election law, when the 2nd

respondent had many years within which he had timeto prepare the election. He contended it would not beproper and fair to award costs to 2nd respondent.

He further argued that it should be noted that thepetitioner should not be penalised for having taken thisstep when 1st respondent should be partly responsiblefor breach of the law the soldiers committed. Hesubmitted that the fair decision should be that eachparty bears its own costs.

Section 27(1) of the Civil Procedure Act (Cap 65)governs award of costs in civil litigations. It providesas follows:-(I). Subject to such conditions and limitations as maybe prescribed, and to the provisions of any law for thetime being in force, the costs of and incident to all suitshall be in the discretion of the court or judge and thecourt or judge shall have full power to determine bywhom and out of what property and to what extent

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such costs are to be paid, and to give all necessarydirections for the purposes aforesaid. The fact that thecourt or judge has no jurisdiction to try the suit shallbe no bar to the exercise of such powers, providedthat the costs of any action, cause or other matter orissue shall follow the event unless the court or judgeshall for good reason otherwise order.

So normally costs follow the events unless the courtor judge for good reason shall otherwise order.Therefore, the law gives wide discretion to the judgeto determine by whom the costs must be paid. However, a decision on who should pay the costs shall be madejudiciously.

In the instant case, it would not be correct to say thatthe petition was frivolous as Counsel for bothrespondents appeared to suggest in their address to uson the issue of costs. It must be noted that the petitioncontained several allegation of non-compliance withthe law allegedly committed by the 2nd respondentand/or his agents or servants. Against the 1st

respondent, the complaints were that he committedillegal practices and other offences in connection withthe election.

There is no doubt that these allegations of non-compliance with the law which were raised deservedserious consideration by the court. And as submittedby

Mr. Balikuddembe, Counsel for petitioner, most of hisallegation for non-compliance with the law wereupheld. It would therefore not be correct to say thatthe petition had not been founded on reasonablegrounds, which deserved to be investigated. Althoughthe investigation of the grounds in the petition endedin favor of the respondent, it cannot be said it was notwell founded.

In my view, although the petitioner lost the petition Iwould not hesitate to adopt the reasoning of the IndianSupreme Court in the case of Charan Lal Sahn &Others v Sinqh Reported in 1985 LRC (const) 31where the court held that ordering the petitioner topay costs in those proceedings would amount tonipping in the bud future and well-founded petition.

In the instant case, considering the nature of theallegations raised in the petition, the historical natureof the petition where the petitioner had contestedagainst the incumbent President and decided to takethe incumbent to court, challenging the election result

and seeking the court to annul the election result, wasvery courageous of the petitioner.

So the petition was very important in legalhistory, because when in 1981 election wasallegedly rigged, the aggrieved party decidedto go to the bush and wage war. In the instantcase, the aggrieved party instead of thinkingof waging a war decided to go to court.

He came to court before us to decide the matter. Wedecided it. Although he lost, I must say it was not afrivolous petition. It was very well-founded petition.

An order to encourage people like the petitioner tocome to court and help in the development of our legal,historical and constitutional development in Uganda,such people should be encouraged. Costs should notbe awarded by way of penalizing them so that theyshould get scared of coming to court.

Clearly, this petition has revealed how perfunctorilythe Presidential Elections were organized by theElectoral Commissioner. It is hoped that if there isanother election for them to organize/arrange, citizenswill have properly organized elections.

It was for the above reasons that I considered itappropriate that each party meets its own costs.

Dated at Kampala this 6th day o f July, 2001.

A.N. KAROKORAJUSTICE OF THE SUPREME COURT

REASONS FOR JUDGMENT OF MULENGAJSC

The Petitioner above named, petitioned this Courtseeking a declaration that Museveni Yoweri Kaguta,the 1st Respondent, was not validly elected as Presidentin the election held on 12th March 2001, and prayingthat the election be annulled. The petition was heardand concluded in April, 2001. On 21st April 2001, theCourt delivered judgment dismissing the petition, andintimated that the detailed findings and reasons thereforwould be given on a later date.

A summary of the facts and background of the case, aswell as the issues framed out of the pleadings, wereset out in the judgment of the Court. I will refer tothem, where necessary, as and when I discuss myfindings on the issues.

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The trial was on affidavit evidence, and had to beexpedited so as to be concluded within a short periodfixed by the Constitution in order to avoid taking upmuch time.

ISSUE NO. 5

The last issue was on what reliefs were available tothe parties. Upon dismissing the petition, we invitedthe parties to address us again on the question of costsspecifically, in view of the holdings on the other issues.After hearing counsels, the Court by unanimousdecision, ordered each party to bear its own costs. Thereasons for that decision were also reserved, to be givenalong with the reasons for the rest of the judgment.

Dr. Byamugisha had prayed for costs on the principleunder S.27 of the Civil Procedure Act, that costs shallfollow the event. He maintained that the case was veryimportant. It had been very involved both on facts andthe law, but it had to be conducted in a very short time.That had necessitated hard work and engaging manyadvocates. He prayed that for the 1st Respondent theaward of costs should include instruction fees for 13counsel. He recalled that counsel for the Petitioner hadin his original submission prayed for costs for 10counsels in the event of the petition being successful,and argued that he (Petitioner’s counsel) should notbe heard to renege from the principle. Learned counselurged the Court not to encourage frivolous litigationby denying costs to the successful parties. For the 2nd

Respondent, Mr. Deus Byamugisha submitted thatthere was no good reason for not following theprinciple in S.27 of the Civil Procedure Act. Hemaintained that an unsuccessful candidate at anelection should weigh his chances of success beforepetitioning the Court and thereby compelling otherparties to incur litigation costs. He also prayed thatthe 2nd Respondent be awarded costs as a successfulparty.

Mr. Balikuddembe for the Petitioner reiterated that thecase was very important and submitted that the petitionhad been brought in the interest of the country. Hestressed that the Petitioner had not been whollyunsuccessful since he had scored some success on someof the issues. Learned counsel also maintained inparticular that “it would not be proper to award coststo the 2nd Respondent for failure to conduct theelections in compliance with the law.”

It is trite that as a general rule, in civil litigation, thesuccessful party is awarded costs of the litigation. It isalso trite that in awarding costs, the Court has very

wide discretion, which needless to say, it must exercisejudicially, having regard to the circumstances of thecase.

To my mind the first and main consideration was theimportance of, and public interest in, the case. Here Imean public interest, not in the sense of curiosity, butin the sense that the country needs to ensure that theelection of its President is a free choice of the citizens,made in accordance with the Constitution and the lawsenacted to regulate the election. That interest is ofparticular significance in Uganda today, given herhistory that is not noted for democratic election of thepolitical leaders. In that sense, in addition to thePetitioner and the Respondents as the obvious parties,the public was the un participating and silent party inthe case, seeking a just pronouncement, according tothe law, on whether the election of the President was afree expression of the will of the majority. I agree withthe submission that it is important for the Court, in theexercise of its discretion, not to do so in a manner thatwould encourage frivolous litigation. However it isequally, if not even more important, for the Court toavoid discouraging would-be petitioners withsubstantial causes of action, from petitioning the Courtfor fear of being crippled by orders for costs. In itsdiscretion the Court should assess the merits anddemerits of the particular case before it. That bringsme to the second consideration in the instant case.

The Petitioner brought to court a tangible case, whichdeserved to be inquired into. Although some issuesthat came up during the trial may have been farfetchedor even trivial, the case as a whole could not bedescribed as frivolous as suggested by counsel for the2nd Respondent.

I agreed with the view expressed in the extract fromthe Guildford Case: Elkins vs. Onslow (1896) 19 LT729, cited in The Digest: Annoted British,Commonwealth and European Cases Vol. 20 at p. 71,para. 642.

“Where the case as disclosed under a petitionis proper for examination and the petition isfounded upon strong prima facie grounds andattended with reasonable and probable causefor pursuing the inquiry to termination thePetitioner will not be condemned in the costsof the respondent although the result may bein favor of the latter. "

I hasten to add however that each case has to beconsidered on its own merits. For the reasons I have

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indicated, I found it appropriate for the court to ordereach party to bear its costs of the petition.

I wish to add my expression of gratitude to counselfor all parties for tremendous assistance they renderedto the Court. Given the enormity of the task and thesevere time constraint, the industry and skill put in thepreparation and presentation of the cases of the respective clients was highly commendable.

I think they have set a good precedent and confirmedthat the special procedure adopted for the undoubtedlyspecial case can achieve the results.

Dated at Mengo the 6th day July on 2001.

J.N. MULENGAJUSTICE OF THE SUPREME COURT

REASONS FOR JUDGMENT OF ODER - JSC

On 21-04-2001, by majority decision, the Courtdismissed the petition and declared that the 1st

Respondent had been validly elected President of theRepublic of Uganda in the Presidential Election heldon 12-03-2001. Reasons for judgment were reserved to be given on a later date. The Court was unanimous about costs. It ordered that each party should bear its own costs, again reserving its reasons for doing so.

My own decision, however, was that the Petition shouldsucceed, and that the election of the 1st Respondent on12-03-2001 as President of the Republic of Ugandashould be nullified, under article 104(6) of theConstitution.

I now give my reasons for doing so.

Approval of the 1st Respondent. The ingredients ofsection 58(6)(c) of the Act have been proved by thePetitioner to my satisfaction.

I am also satisfied and find that the Commission ofsuch illegal offences rendered the 2001 PresidentialElection not free and fair.

I would hold therefore, that grounds 3(1)(h), 3(1)(w),3(2)(c) and 3(2)(f) must succeed. On the basis of thatalone, I would nullify the result of the PresidentialElection of 2001 and declare the election of the 1st

Respondent as President of Uganda invalid.

That disposes of the fourth issue in this Petition.

I shall next consider the fifth and last issue of thePetition.

It is what reliefs are available to the parties under thisissue. Mr. Balikuddembe submitted that the Petitionerhad adduced efficient evidence to prove all the groundscanvassed in the Petition. On the basis of the groundsput forward, the evidence adduced by the Petitionerand the submission of his Counsel, Mr. Balikuddembeurged the court to grant the prayer made in the Petition,which is that the court should declare that the 1st

Respondent was not validly elected and that theelection be annulled and costs be awarded to thePetitioner.

In his submission, Dr. Khaminwa prayed for judgmentin the 1st Respondent’s favor. On his part Mr. Kabatsiprayed that the judgment should be for the 2ndRespondent, and that the Petition be dismissed withcosts to the 2nd Respondent.

In view of what I have already said and the findings Ihave made in this judgment, my considered opinion isthat the Petition should succeed, and that thePetitioner’s prayers be granted. Accordingly, I woulddeclare that Museveni Yoweri Kaguta was not validlyelected President, and that the election be annulled.

On the issue of costs, the Court heard counsel for allthe parties and unanimously decided in its judgmentof 21-04-2001 that each party to the Petition shouldbear its costs. It so ordered but reserved its reasons fordoing so.I now give my reasons.

Section 27(1) of The Civil Procedure Act (cap. 65)provides: -

27(1). Subject to such conditions as may beprescribed, and to the provisions of any lawfor the time being in force, the costs of andincident to all suits shall be in the discretionof the court or judge and the court or judgeshall have full power to determine by whomand out of what property and to what extentsuch costs are to be paid, and to give allnecessary directions for the purposesaforesaid. The fact that the judge or court hasno jurisdiction to try the suit, shall be no barto exercise such powers:

Provided that the costs of any action, causeor matter or issue shall follow the event unlessthe court or judge shall for good reasonotherwise order.”

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Although costs should normally follow the event thesection of the Civil Procedure Act above referred togives the court wide discretionary powers to orderotherwise for good reason. Like all judicialdiscretion’s, this one must be exercised judiciously.

In the case of Major Gen. D. Tinyefuza ConstitutionalAppeal No.1 of 1997 (SCU) (unreported) this courtordered each party to bear its costs although the appealwas dismissed. The Court’s reasons for doing so werethat in order to encourage constitutional litigationparties who go to court should not be saddled with theopposite party’s costs if they lose. If potential litigantsknow that they would face prohibitive costs oflitigation, they would think twice before takingconstitutional issues to court. Such discouragementwould have adverse effect on development of exerciseof the court’s jurisdiction of judicial-review of theconduct of authorities or individuals, which areunconstitutional. It would also stifle the growth of ourConstitutional jurisprudence. The culture ofconstitutionalism should be nurtured, not stunted inthis Country, which prohibitive litigation costs woulddo if left to grow unchecked. I agree with the principlesin that decision. In my view they should equally applyto the instant Petition.

I think that there are even more compelling reasonsfor applying them to the instant case. First, this is thefirst time in the history of this Country that the resultof a Presidential Election has been challenged in Court,not elsewhere.As Mr. Balikudembe said, the Petitioner went to courtin order to encourage the development of peacefulsettlement of political and election disagreements.

This is important for the sake of peace and stability ofthe Country. The Petitioner took the right step bycoming to Court, in my view.

Second, access to the Court for peaceful settlement of

constitutional, political and election disputes shouldbe available to all, the rich and the poor alike, whichprohibitive costs of litigation would discourageeffectively.

The third reason for ordering each party to bear itscosts, is that even by the majority decision, thePetitioner won on certain issues, though few. Themanner in which the 2nd Respondent conducted theelection fell below expected or normal standards. So,the Petition was not frivolous. It had some substance.

Fourthly, this case should be regarded as a special onedue to its circumstances.

For these reasons, my view was that each party to thePetition should bear its costs.

Before I leave this Petition, I wish to say first, that thereare certain flaws in the Presidential Election laws, someof which I have pointed out in the course of thesereasons. I hope that the authorities concerned will studythe laws with a view to amendments for improvement.

Secondly, I wish to express my gratitude to the learnedcounsel for each and all the parties to the Petition forthe industriousness with which they discharged theirresponsibility within the very limited time which wasavailable. They did so much research of authorities,evidence and materials, which gave me tremendousassistance in my work.. Without such assistance itmight have been impossible to achieve what I did inpreparation and writing of these reasons.

Dated at Mengo this 6th day of July, 2001.

A. H. O. ODERJUSTICE OF THE SUPREME COURT