Mansur & 4 Ors Vs Casablanca Pub ,Night Club & Restuarant Ltd & 6 Ors (MISC. APPLN. 406 OF 2018) [2019] UGHCCD 8 (26 February 2019)

IN THE HIGH COUR TOF UGANDA AT KAMPALA

CIVIL DIVISION

MISC. APPLIC. NO. 406 OF 2018 ARISING FROM

HCCS NO. 153 OF 2018

1. MANSUR SHARIF

2. RUSHEKESH VADODARIA

3. TIMOTHY M. KREUTTER

4. MALIK BHARWANI

5. ELIZABETH ROUSSOS………………APPLICANTS/PLAINTIFFS

V

1. CASABLANCA PUB, NIGHT CLUB AND RESTAURANT LIMITED

2. MEHARI ABRAHALE GEBREMICHAELI

3. SISAY BEKURE WOLDMICHAEL

4. LATIN EVENTS LIMITEDT/A BIG MIKES

5. HILL 16 PRODUCTIONS LIMITED T/A BUBBLE O’ LEARY

6. OLY FOODS LIMITED T/A ATMOSPHERE RESTAURANT AND LOUNGE

7. WAVE LOUNGE LIMITED-UGANDA…….RESPONDENTS/DEFENDANTS

BEFORE HON. LADY JUSTICE H. WOLAYO

Introduction

At the commencement of hearing this application, counsel Barenzi for the 1^st , 2^nd, 3^rd, 4^th, 5^th and 7^th for the respondent raised a preliminary objection directed at the jurisdiction of this court to entertain the application, let alone the suit.

In support of his submission, counsel cited regulation 43 (7) of the National Environment ( Noise and Vibrations Standards and Control ) Regulations 2013, which designates the Magistrate’s court as the court of first instance.

Counsel Ikimana Faridah for the 6^th respondent associated herself with submissions of counsel Barenzi.

Counsel Arinaitwe for the applicants countered that the applicants’ cause of action is in the common law tort of nuisance and not statute . Counsel further submitted the High Court has unlimited jurisdiction and therefore it is not precluded from hearing this suit.

An examination of the plaint shows the suit is founded in several causes of action:

1. Noise emission under the common law tort of nuisance

2. Right to a clean and healthy environment

3. Allowing use of tobacco and other narcotic substances which circulate in the air and interrupt the quiet enjoyment of plaintiffs’ properties

4. Financial loss suffered as a result noise emissions.

The plaintiffs sought several orders against the defendants including declaratory orders that the business operations of 1^st to 7^th defendants violate the plaintiffs’ right to a clean and healthy environment by emitting noise beyond maximum permissible levels; noise was beyond maximum permissible to create and protect a clean and healthy environment; high noise levels amounts to a breach of their constitutional duty ; general and special damages, among other orders.

The National Environment (Noise and Vibrations Standards and Control Regulations) 2013

As suggested by counsel for the defendant, these torts have all been codified in statutes. The overriding law under which the plaintiffs’ complaint is regulated is the (Noise and Vibrations Standards and Control regulations, 2013 ) .

These regulations are made under sections 28 of the National Environment Act cap 153 . Section 28 prescribes that the National Environment Management Authority will establish criteria and procedures for the measurement of noise and vibration pollution; minimum standards for the emission of noise and vibration pollution into the environment ; and guidelines for the abatement of unreasonable noise and vibration pollution emitted into the environment.

These regulations are enforced by NEMA, police and a local authority through monitoring; by a local council or Executive Director to whom a complaint can be lodged; and by the courts through a civil action or penalties for offences created under the regulations.

Civil action for noise pollution

Regarding civil action in the courts, regulation 43(2) entitles any person or group of persons to bring an action in a court of competent jurisdiction to stop, prevent or control the emission of noise from any source or place.

The orders a court can make are authorised by regulation 43(8) and these include an order directing the person or body making or causing or responsible for the noise to take measures necessary to reduce noise or to take specified measures for the prevention or limitation of noise. The court has power under regulation 43( 9) to stop, prevent or control the emission of noise from any source. Under regulation 43 (10), any orders made by the court must be complied with. Under regulation 43(3), the complainant has a duty to show or prove personal loss, injury or discomfort caused by the emission.

From a law and policy perspective, the intention of the legislature was to create a statutory tort of noise pollution which has to be remedied under the statute that creates it . Counsel Barezi referred me to Commercial Court MC No. 14 of 2014 Kawuki Mathias v Commissioner General URA where the High court held that under the East African Customs Union Act , the High Court enjoyed appellate jurisdiction and not original jurisdiction and therefore the plaintiff had to take his complaint to the Tax Appeals Tribunal as a first step.

Where a statute confers original jurisdiction on a subordinate court, the High Court has a duty to give effect to that statute and only exercise appellate jurisdiction at the appropriate time. This means the submission of counsel for the applicants /plaintiffs on jurisdiction is without merit.

In Peter Marcic v Thames Water Utilities Ltd [2002] EWCA CIV 65, the Court to Appeal of England dealt with a situation where the Water Industry Act that sets out powers and duties of sewerage undertakers. Under this Act, the tort of nuisance by flooding of sewage was enacted into a statutory duty on the part of the undertakers to prevent flooding and therefore breach of that duty was remedied under the statute and not the common law tort of nuisance.

With respect to the instant case, Noise and Vibrations Standards Control Regulations 2013 impose upon occupiers, owners the duty to control noise levels and breach of that duty leads to administrative action by local authority or penal consequences or an aggrieved person or class of persons can bring an action under the regulations. By implication, the plaintiffs cannot bring an action under the common law tort of nuisance when there is a written law that regulates their complaint. Regulation 43 (7) designates the magistrate’s court as the court of first instance which means, the High Court comes in on appeal.

With respect to breach of statutory duty by KCCA and NEMA, jurisdiction is with magistrate’s court as court of first instance since only declaratory orders are sought.

Right to a clean environment

With respect to the right to a clean and healthy environment, although this cause of action seems to be grounded in constitutional law it is based on the same facts that give rise to a statutory action. The declaratory order sought is not available under the Regulations which means this cause of action has to give way to the action envisaged by the regulations.

Tobacco Control Act 22 of 2015

With respect to use and consumption of tobacco and other narcotic substances, these are remedied under the Tobacco Control Act that confers on everyone the right to tobacco free environment and prescribes offences for contravention of the Act.

General and special damages for financial loss

With respect to general and special damages sought by the plaintiffs, section 108 of the National Environment Act saves existing law that obtained immediately before the coming into force of the Act as it relates to environment but on the condition it shall have effect subject to such modifications as may be necessary to give effect to the Act.

The common law principle under Ryland v Fletcher that places a duty on an owner of land to control dangerous substances on his or her land from escaping and causing injury or damage to the neighbours and their property , is one such law that was preserved by section 138 of the Act.

If the plaintiffs have a cause of action under the rule in Ryland v Fletcher, their claim is triable by the High court on account of limit to pecuniary jurisdiction of magistrates’ courts.

It follows that the preliminary objection raised by counsel for the 1^st to 7^th defendants /respondents succeeds.

Orders

1. The plaintiffs will bring an action for breach of statutory duties by the respondents under the Noise and Vibrations Standards and Control Regulations 2013 in the magistrates court.

2. The plaintiffs will pursue their right to a tobacco free environment under the Tobacco Act. In the absence of designated court , the court of first instance is the magistrates court.

3. If the plaintiffs have a cause of action under the rule in Rylands v Fletcher, they are free to amend pleadings to retain this specific cause of action only .

4. The effect of these orders is that the applications for interim and temporary orders cannot stand as the magistrates court has jurisdiction to issue orders with similar effect under regulations 43 (8) .

5. Costs to the 1^st to 7^th defendants in any event.

DATED AT KAMPALA THIS 26^TH DAY OF FEBRUARY 2019

HON. LADY JUSTICE H. WOLAYO

Legal representation

Signum Advocates for applicants/plaintiffs

Barenzi & Co. Advocates for the 1^st, 2^nd, 3^rd, 4^th, 5^th, 7^th defendants/respondents

Nangumya & Co. Advocates for the 6^th respondent