Court name
HC: Civil Division (Uganda)
Judgment date
21 October 2014

Asiimwe & 2 Ors v Leaf Tobacco & Commodities (U) Ltd & Anor (Miscellaneous Cause-2013/43) [2014] UGHCCD 279 (21 October 2014);

Cite this case
[2014] UGHCCD 279

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

MISCELLANEOUS CAUSE NO. 43 OF 2013

  1. ASIIMWE DAVIS BARIGYE
  2. NAKACWA MARIA                       ::::::::::::::::::::::::::::::::::::::::APPLICANTS
  3. SABIKA MOSES IVAN

VERSUS

  1. LEAF TOBACCO & COMMODITIES (U) LTD
  2. NATIONAL ENVIRONMENTAL MGT AUTHORITY::::::::::RESPONDENTS

 

BEFORE: HON. MR. JUSTICE WILSON MASALU MUSENE

JUDGMENT

 

The Applicants filed this Application under Article 50(1) of the Constitution, Sections 98 of the CPA and Order 52 Rules 1 and 2 of the Civil Procedure Rules.

They sought Orders/declarations that their right to a clean and health environment was being violated by the respondents, the continuous air pollution by emission of tobacco smoke, dust and smell to the environment by the respondent was a violation of the public’s right to a healthy and clean environment; the granting of a license by the 2nd Respondent to the 1st Respondent to process tobacco in a residential area contravened Article 39 of the Constitution and Sections 3(1) of the National Environment Act; that the 2nd Respondent failed to execute its legal obligations; an order restraining the 1st Respondent from continuing to violate the right to clean and healthy environment; an order directing the 1st Respondent to carry out a medical screening of residents around the factory; an order directing the 2nd Respondent to revoke the pollution license/approval and costs of the Application.

The Applicant’s Application was supported by the Applicant’s affidavits all dated 1st November 2013.  The 1st Respondent’s reply was supported by an affidavit deponed by Alphonse Rutayisire dated 10th December 2013.  As for the second Respondent, their submissions are based on the affidavit sworn by Dick, working as the Environmental Audits and monitoring officer with the 2nd Respondent.  Upon the parties’ joint scheduling memorandum dated 15th April 2014, and the continued scheduling in Court on the 15th May 2014, the following issues were agreed to:

  1. Whether the Applicant’s suit herein is properly before Court.
  2. Whether the 1st Respondent’s activities have violated the Applicant’s right to a clean and healthy environment.
  3. Whether the 2nd Respondent failed in its statutory duties under the National Environmental Act.
  4. What remedies are available to the parties.

The issues not agreed upon were:-

  1. Whether the activities of the 1st Respondent at Kireka are lawful.
  2.  Whether exports are essential in this case to establish the effects of the effects of exposure to environmental tobacco smoke.
  3. Whether the precautionary principle is applicable in this case.

They will all be handled as issues No. 1 – 4 are resolved one by one.  The Applicants were represented by M/S NTK Advocates, while the 1st Respondent was represented by M. B. Gimara Advocates and 2nd Respondent by the legal chambers of NEMA.  As far as the 1st issue is concerned, the 1st Respondent’s objections are contained in paragraphs 31 and 35 of its affidavit in reply to the effect that the application discloses no cause of action and secondly that the Application was wrongly commenced by Notice of Motion rather than by Plaint.

With regard to locus standi and cause of action, Article 50(1) and (2) of the Constitution confers a right on any person who claims that a fundamental right or other right or freedom guaranteed under the Constitution has been infringed or threatened is entitled to apply to a competent Court for redress which may include compensation.  It also permits any person to apply on behalf of others.  Both Advocates for the 1st Respondent, Leaf Tobacco & Commodities Uganda Ltd and 2nd Respondent, National Environmental Management Authority (NEMA) have submitted that for one to have a cause of action, they must demonstrate a defined right, and that the same has been breached and that the defendants are liable.  I entirely agree with that reasoning which is in line with the classical case of Auto garage and Others Vs Motokov [1971] E.A 514.  And indeed in the present case, the Applicants, Asiimwe Davis Barigye, Nakachwa Maria and Sabika Moses Wan’s case is that their right to a clean and health environment has been violated by the two Respondents.  They stress that the continuous air pollution by emission of tobacco smoke, dust and smell to the environment was a violation of the public’s right to a healthy and clean environment and they accuse the 2nd Respondent (NEMA) of granting a license to Leaf Tobacco & Commodities Uganda Ltd to process tobacco in a residential area.  In my view, a cause of action has been disclosed at first sight.  The submissions by the Advocates for the 1st and 2nd Respondents that the right that the Applicants seek to enforce must be clearly defined under S.24 of the National Environmental Act, are with respect uncalled for.  To urge that the procedures for the measurement of “Air quality” to establish ambient air quality standards, occupational air standards, emission standards, e.t.c. must first be established by NEMA before the Applicants can sue as far as the violation of their right to a clean and healthy environment is concerned is prepodourous and too academic.  Learned Counsel for the Respondents are not being realistic as to what is exactly happening on the ground and are trying to sway this Court by philosophical and academic arguments which cannot stand.  To say that one cannot gauge the totality of the right to a clean and healthy environment in the absence of standards and yet such right is provided for under the Constitution and National Environment Act is unacceptable by this Court, it is unrealistic and too theoretical.  And if one may ask, is it the Applicants to set the standards or NEMA? If NEMA has failed to do its work, and yet Applicants are suffering or claim to be suffering as a result of the actions of both NEMA and another, how long should they continue to suffer as they wait for standards to be set?  I therefore find the case of Byabazaire Vs Mukwano Industries [2002] 2 E.A 353 before Justice Tinyinondi as he then was quoted by Counsel for the Appellants out of context and not applicable in the circumstances of this case.

The law applicable as far as this case is concerned was clearly and elaborately set out in the case of Advocates Coalition for Development and Environment Vs Attorney General, Kampala High Court Miscellaneous Cause No. 100 of 2004, before Justice Rubby Aweri Opio, (as he then was).  While emphasizing the importance of Article 50(1) of the Constitution under which the present case has been similarly filed, his Lordship stated:-

“The importance of the above law is that it allows any individual or organization to protect the rights of another even though that individual is not suffering the injury complained of or does not know that he is suffering from the alleged injury.  To put in Biblical sense, the Article makes all of us our “brother keepers” in that sense, it gives all the power to speak for those who cannot speak for their rights due to their ignorance, poverty or apathy…..”

I entirely agree with the above reasoning and adopt it wholly in the context of the present case.

And in the case of British American Tobacco Ltd Vs The Environmental Action Network, High Court Civil Application No. 27 of 2003; Ntabgoba P.J (as he then was) and no doubt one of the leading Ugandan Jurists, discussed at length Article 50 of the Constitution.  His Lordship held that the Article does recognize the existence of marginalized groups like children, illiterates, the poor and the deprived on whose behalf any person or group of persons could take action to enforce their rights.  That being the rightful position of the law, then I reject the submissions by both learned Counsel for the Respondents that the Applicants herein have no locus standi or cause of action.  I entirely agree with the submissions by learned Counsel for the Applicants that this Application is properly brought to protect and enforce a fundamental right to a clean and healthy environment as provided under Article 39 of the Constitution and the obligations of NEMA under Section 4 (3) of the National Environment Act.

Counsel for the 1st Respondent quoted the case of Charles Harry Twagira Vs Attorney General, Supreme Court Civil Appeal No. 4 of 2007, whereby he wanted to mislead this Court that a claim under Article50 of the Constitution has to be brought by plaint.  Unfortunately for learned Counsel, I have read that case of Charles Harry Twagira many times.  And as far as the context of the present case is concerned, Hon. Justice Tsekooko, JSC held:-

“In general and with the greatest respect to the Court of Appeal, I agree with the contention of the Appellant that the Court erred when it held that an action under Article 50 of the Constitution can only be instituted by plaint.  In my considered opinion a person who claims that a fundamental or other right or freedom guaranteed under the Constitution has been infringed or threatened, can institute an action in competent court by plaint, or can seek declarations by Notice of Motion depending on the facts of the complaint within the meaning of Article 50…….”

In the present case, the Applicants have sought many declaration as stated at the beginning of this Judgment.  The Applicants sued the 2nd Respondent (NEMA) for condoning the illegal tobacco operations of the 1st Respondent.  In a letter dated 20th May, 2013, Annexture 1 to the 1st Applicant’s affidavit, addressed to NEMA (2nd Respondent), there was no response.  And yet on 20/06/2013, the 2nd Respondent carried out an audit/inspection and issued the 1stRespondent an Environmental improvement Notice showing that the 1st Respondent was not complying with the National Environment Regulations.  And yet on page 3 of the 2nd Respondent’s submissions, they state under paragraph four that the Applicants were on a mere fishing expedition.  This Court finds the submissions of the 2nd Respondent contradictory.  2nd Respondent cannot state that Applicants were on a fishing expedition when at the same time they have issued an environmental improvement Notice to the 1st Respondent.  The issuance of the Improvement Notice in my view, which was prompted by the Complaints of the Applicants, was a recognition by the 2nd Respondent (NEMA), that the actions of the 1st Respondent were not proper.

Furthermore, the 2nd Respondent filed an Affidavit in reply to the Application sworn by Dick Lufafa dated 10th January 2014.  They attached a Certificate of Approval of Environmental impact Assessment (EIA) for Namanve Industrial Park dated 26/02/2004 (Annexture A).  According to this Court, this is a clear indication and proof that the 1st Respondent has never been approved to operate from Kireka, the current location being complained of by the Applicants. 

In the premises, the 2nd Respondent must be held responsible for failing to ensure that the 1st Respondent operates at Namanve Business park B, Wakiso District as opposed to Kireka.  The 2nd Respondent failed to comply with Section 2(2) (a) and (i) of the National Environment Act. For the avoidance of doubt, they provide as follows:-

“S. 2(2) (a) The Principles of Environment Management refered to in Sub-section (1) are:-

  1. To assure all people living in the country the fundamental right to an environment adequate for their health and well being.
  1. To require prior Environmental assessments of proposed projects which may significantly affect the environment or use of natural resources.”

Failure by the 2nd Respondent to take action on the complaints and concerns raised by the residents of Kireka including the applicants (annexture F) to the 1st Applicant’s affidavit, amounted to failure in its mandatory and statutory duty of protecting the applicant’s right to a clean and healthy environment.  And for the 1st Respondent, Leaf Tobacco Commodities (U) Ltd, I find and hold that its activities are illegal due to lack of a Certificate of Approval of environmental impact assessment for Kireka.

No such Certificate has been produced by the Respondent and so the complaints and case of the Applicants are genuine and constitute a meritorious cause of action.  Before I take leave of this issue, I refer to Annexture “D” to the 1st Applicant’s affidavit in support.  It is a reply by the 1st Respondent to the complaints by the residents of Kireka where in the 1st Respondent admitted the inconveniences of Tobacco dust, smoke and smell.  The letter reads:-

            “Re:  Complaints against Tobacco Dust pollution

Reference is made to your letters dated 14th March and 23rd March 2012 about the same.  We have received your letters and concerns as citizens neighboring our factory about the same.  We have received your letters and concerns as citizens neighboring our factory about the tobacco dust and we hereby express our sincere apologies for the inconvenience caused.  As a factory, we have put measures to suppress the dust, but due to the nature and process of the raw material some dust may escape from the factory premises…. Some of the measures proposed include raising part of the perimeter wall to the west, raising dust chimneys, blocking air pathways at the dust room and watering the murram yard to reduce dust dispersion by wind……  we would like to take this opportunity to thank you (the community) for baring with us for all these years, and urge you to stay calm as we implement the measures…….

In addition, the company has acquired a piece of land measuring 5 acres in the Namanve Industrial Park where production will be shifted to………..”

The letter from Leaf Tobacco & Co. Commodities (U) Ltd was signed by Hanifa Lubega, Health Safety & Environment officer and to the LC1 Chairman Kireka.  This Court finds and holds that where the 1st Respondent has admitted liability in writing as above, and undertaken to relocate the factory, as they repeated in this Court during the Application for Temporary Injunction, they cannot turn round like a chameleon deny or worst of all, allege that the Applicants have no cause of action.  The Courts in this country will not sit back and watch such a flagrant violation of the law and people’s Constitutional rights under the cover of legal semantics and delaying tactics on the part of the Respondents when the people on the ground are suffering as a result of their admitted actions, which actions are illegal.  The Applicants and other affected citizens cannot continue enduring the consequences of Tobacco Pollution which the Respondents have not denied.  The first issue is therefore resolved in the positive or affirmative. 

The second issue is whether the 1st Respondent’s activities have violated the Applicant’s right to a clean and healthy environment.  Save for            Counsel for the 2nd Respondent, the other two Counsel for the Applicants and for the 1st Respondent submitted at length.

Counsel for the 1st Respondent in summary submitted that there was no evidence to sustain the Applicant’s assertions.  He added that no evidence was adduced as required under Section 101 – 103 of the Evidence Act.  He challenged the Applicant’s evidence on the assertion that the “tobacco plant is situated in a residential area:”

It was the submission of 1st Applicant’s Counsel that the pictures were dark and unclear and that the person who took the pictures was not called as a witness. 

Secondly, that Applicants had no permits of occupancy for their houses near the factory under Rule 20 (1) and (2) of the Public Health (Building Rules S.1 No. 281 – 1.  He further submitted that there was no proof of Hostel and no Certificate of Title or Tenancy Agreements.

Counsel for the 1st Respondent submitted that although the documents were admitted during the scheduling conference, it did not imply admission as to the contents there in.  With all due respect, I am unable to agree with Counsel for the 1st Respondent that although documents were admitted at the scheduling conference, it did not imply admission of the contents.  That is totally wrong and misleading argument because a document is composed of contents and there is no way one can divorce a document from its contents.  In the case of Tororo Cement Co. Ltd. Vs Frokina International Ltd, Supreme Court Civil Appeal No. 2 of 2001 at page 5, the Hon.Justice Tsekoko, JSC held:-

“Under the new order XB of the Civil Procedure Rules, the holding of a scheduling conference in civil cases is mandatory.  See Rule 1(1) thereof.  The principal objective of the scheduling conference is to enable Court to assist the parties to dispose of cases expeditiously by sorting out points of agreement or disagreement”

Once documents are agreed upon at the scheduling conference, there is no way a party to that agreement can turn around, again like a chameleon to deny that they did not agree on the documents or the contents.  And least of all is what type of lawyer or Advocate would accept or admit a document without reading the contents.  That would be absurdity.  I therefore reject the submissions by Counsel for the 1st Applicant that documents were agreed on but not the contents.  For example, under the agreed documents were photographs of structures taken on 7/05/2013.  The photographs are marked “A” and “B” and show the factory premises amidst very many residential houses in the background.  To argue that the persons who took the photographs was not called as a witness is questionable reasoning because why did Counsel for the 1st Respondent admit them in the first instance, particularly in view of the purpose of scheduling conference as outlined above.  Also among the agreed documents is the letter from the 1st Respondent dated 26th March, 2012.  It has already been referred to in this Judgment while considering the first issue.  The letter clearly is addressed to the Residents of Kireka and Citizens neighboring the factory.  How then can Counsel for the 1st Respondent make U-turn to state that there was no proof that Applicants were living in the neighborhood of the factory together with others when the very respondent has written to them in that capacity.  Is there need for any further evidence to prove that there are many residents in the area in which letter he refers to them as a community and apologises for the inconveniences of the tobacco dust from their factory.  In that letter which is agreed document No. 4, the 1st Respondent thanks the community for bearing with the situation for all those years and undertook to shift the very factory.  The agreed upon document was copied to LC1 Chairman among others.  So were they referring to a community of animals?  Advocates as officers of Court should take their duties seriously and assist the Courts to arrive at Justice other than meandering around facts and documents admitted as scheduling including those written by their own clients.  The art of advocacy would be taking a different direction, away from Justice if Courts were to accept such reasoning in scenarios like “admitting documents but not their contents”.  Be that as it may, in their written submissions on pages 4 and 5, learned Counsel  for the 2nd Respondent (NEMA) have stated:-

“Previously the Company operating in Kireka was mater mind tobacco (U) Ltd, that was issued a Certificate of approval on 20th of August 2001 under certificate number 00189.  It seems to us that the 1st respondent took over business operations of mastermind Tobacco Limited and started operating as Leaf Tobacco and Commodities Industries in the same area.  However, NEMA was never notified about the said takeover by the 1st Respondent of Mastermind Tobacco Ltd.  The 1st Respondent thereon submitted a project brief for issuance of an Environmental impact Assessment Certificate approval for premises they claim to Have acquired in Namanve comprised in Kyagwe Block 113 Plot 577, Namanve Mukono.  NEMA thereafter issued the above certificate to the 1st Respondent and licenced it to carry out its activities at Namanve Business Park and not in Kireka.”

The above submissions from Counsel for NEMA out rightly implicate the 1st Respondent.  And yet Counsel for the 1st Respondent is telling this Court that Applicants should prove that they are staying in Kireka and that the photographer of their houses and those of others should come to this Court to testify about such admitted facts.

Counsel for the 2nd Respondent (NEMA) went on to submit that when the 1st Respondent took over the business of Mastermind Tobacco, it should have notified NEMA of the same, but did not do so.  They concluded that failures by the 1st Respondent should not be visited on NEMA.

So for Counsel for the 1st Respondent to allege that there is no evidence at all of tobacco smell, dust and smoke when the 1st Respondent has so admitted in writing, apologized to the people or community and undertaken to re-locate to the rightful place where they were licenced to operate, leaves this Court wondering as to whether learned Counsel got instructions from 1st Respondent or are acting on their own.  In the premises, and in view of what is outlined above, this Court finds and holds that the 1st Respondent has never been approved to operate at Kireka but rather was approved to operate from Namanve Industrial Park.  The 2nd Respondent’s Certificate of approval (annexture A to 2nd Respondent’s affidavit) and the submissions of Counsel for the Respondent refers.

This Court, from the evidence of the admitted photographs at scheduling and submissions of Applicants’ Counsel and Counsel for 2nd Respondent, also finds and holds that the 1st Respondent’s factory is situated in the middle of several other house/residences of many people including those of the Applicants, going by their supporting affidavits and annextures thereto.  The activities of the 1st Respondent are therefore a violation of the Applicants’ right to a clean and healthy environment, hence their false promises to relocate. 

The second Respondent, which has the duty to enforce the National Environment Act neglected its duty by issuing an improvement Notice to the 1st Respondent instead of stopping its unlawful operations at Kireka. The meaning of environment under Section 1(O) includes “Odour and taste”.  Annexture B on the 2nd Respondent’s Affidavit in reply (NEMA Environmental improvement Notice dated 20/06/2013) also confirms that, in addition to illegal location at Kireka, the 1st Respondent was non compliant with the air quality regime.

The Tobacco pollution is acknowledged by the 1st Respondent in a letter dated 26/03/2012 which I have already referred to.  Furthermore, I agree with the submissions of Counsel for the Applicants that there is constant Tobacco smell, tobacco dust, tobacco smoke and the Applicants and other people in the neighbourhood have no fresh air.  This is stated in the affidavits of the 2nd and 3rd Applicants in support of the Application and has not been rebutted by the Respondents. In Jane Lugolobi & 9 Others Vs Gerald Segirinya T/a curry powder factory HC Misc. Application No. 371 of 2002, my brother Judge Lameka Mukasa held, and correctly so that undenied facts in a affidavit are accepted or deemed so accepted.  The same position was stated in Masa Vs Achen, [1979] H.C.B.11.

Counsel for the 1st Respondent has submitted that there is no evidence of cancer, respiratory tack infections, heart diseases and all other alleged diseases.  This Court rejects that sort of reasoning because once a hazardous problem has been indentified, one cannot wait for people to contract cancer and heart diseases so as to prove that the illegal location of the 1st Respondent’s factory in Kireka is dangerous and harmful to the surrounding population.  That is naïve reasoning which this Court cannot accept.  The fact that the lives of the people in the neighborhood of the 1st Respondent’s factory are in danger, real and potential has clearly come out in the affidavit evidence on record by the Applicants.  In the case of Green Match Vs Attorney General & Another Misc. Application No. 140 of 2002, it was held that knowledge can be acquired through various modes such as reading, and human senses like seeing, hearing, smelling, tasting or touching, followed by understanding and perceiving what has been sensed.  And once someone has deposed to the facts relating to the acquisition of such knowledge as has been done by Applicants’ affidavits in this case, such evidence is reliable.  That was also the position of the law as stated or held in the case of Environmental action network Ltd Vs Attorney General & Another, Misc. Application No. 39 of 2001.

Furthermore, during this modern era of technological development, Courts accept documents/reports from the internet.  Provided a clear search engine/website has been cited.  And that is the position in this case with regard to the reports (Annextures “j” and “k”) upon which the 1st Applicant based his scientific disclosures about tobacco related diseases. 

The website has been quoted or stated as http://www.epa.gov/smokefre/pubs/etsts.html for annexture “k”.

They are admissible in evidence in accordance with the electronic transactions Act.  That was also re-stated by my sister Justice Hellen Obura in the case of TECHNO TELCOM LIMITED VS KIGALO INVESTMENTS LTD, MISC. CAUSE NO. 0017 OF 2011.

In that regard, I reject the submissions of Counsel for the 1st Respondent that though internet sourced documents may be authentic, its veracity may be questionable.  This Court is inclined in the circumstances of this case to take Judicial Notice of the dangers of tobacco smoking as a matter of science under S.56 (2) of the Evidence Act.  That is in line with the decision by Hon. Justice J. H. Ntabgoba, Principal Judge as he then was in the case of Joseph Eryau Vs the Environmental Action Network, Civil Application No. 39 of 2001.

And whereas Counsel for the 1st Respondent has submitted that tobacco smoking/passing smokings are different from tobacco processing, the question posed by this Court is what are the effects?  In my view, the effects of tobacco processing are even worse given what has transpired in this case over the years. Some of the effects may not be immediate and so I reject the demands by Counsel for the 1st Respondent for lung cancer patients, heart disease patients and asthma patients.  As the common saying goes, prevention is better than cure.  This Court cannot in the circumstances of this case doubt the real and potential dangers and effects of tobacco dust, smell and dust.  And that is why the 1st Applicants have to re-locate the factory as conceded and already stated herein before.

The Applicants and the entire public cannot continue to be exposed to such dangers through the illegal factory operations of the 1st Respondent at Kireka.  The Applicants have a legal right to a clean and healthy environment and life

Lastly on this issue and as far as the precautionary principle is concerned, In the case of Siraji Waiswa Vs Kakira Sugar Works Ltd, Misc. Application No. 230 of 2001, Honourable Justice Bamwine, now PJ; while applying the precautionary principle held:-

“The Applicant does not have to wait until his presumed rights are violated before he lodges an application for a temporary injunction.”

In the present case and as I have already intimated, the law is preventive and the applicants and other neighbors cannot continue to live under circumstances of real, perceived and potential public health hazards from the illegal operations of 1st Respondents factory in a place it is not supposed to operate from.  In my view, there is no other opportune time than now to apply precautionary measures to avoid irreversible dangers to public health associated with tobacco processing.  In this regard, I reject the 1st Respondent’s alleged contribution to the economy of this country because that is not helpful to people who are living in unhealthy environment and people who cannot benefit when they are sick or threatened with highly potential sickness and even death.

In the premises, I do hereby find and hold that the 2nd issue is hereby answered in the affirmative.

The third issue is whether the 2nd Respondent failed in its statutory duties under the National Environment Act.  This issue has more or less been covered while discussing the 2nd issue.  This Court notes that the 1st Respondent now is different from the Uganda Tobacco Processors.  And whereas the 2nd Respondent’s contention is that when the 1st Respondent took over the business of Mastermind Tobacco, it did not notify them, all the same the 2nd Respondent should have stopped, prevented or discontinued the illegal activities of the 1st Respondent instead of issuing an improvement certificate.  This Court therefore finds and holds that to the extent that the 2nd Respondent allowed the 1st Respondent to operate a tobacco factory in a residential area, even after they have issued an Environmental impact Assessment for operations in Namanve, the 2nd Respondent failed in its duties under the National Environment Act.  The third issue is also hereby resolved in the affirmative.

On the remedies available, Counsel for the 1st Respondent submitted that in seeking an immediate relocation of the 1st Respondent’s factory from Kireka to a gazzetted Industrial area of Namanve, that the Applicants or their Counsel have not cited any law under which this Court can make such Orders.  They relied on Sections 71 and 72 of the National Environment Act, which Sections provide for environmental restoration orders and environmental easements.  With respect to learned Counsel for the 1st Respondent, I find their reasoning very absurd and their submissions are hereby rejected.

Article 139(1) of the Constitution provides that the High Court shall, subject to the provisions of the Constitution, have unlimited jurisdiction in all matters and such appellate and other jurisdiction as may be conferred by the Constitution or other law.

An elementary interpretation reveals that this Court has unlimited jurisdiction in all matters, including matters of environmental concerns as has been raised in this case. 

Secondly, S.33 of the Judicature Act empowers this Court to grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim, so that as far as possible all matters in controversy between the parties may be completely and finally determined.  This is not to forget the inherent powers of this Court under S.98 of the Civil Procedure Act in the interest of substantive justice.  And as far as this case is concerned, having found and held that the 1st Respondent is not supposed to operate at Kireka but Namanve Industrial Park, and in respect where of 2nd Respondent issued them licence to operate, should this Court then fold its hands because of the orders allegedly under Sections 71 and 72 of the Environmental Act?  And yet the right to a clean environment is provided for under the Constitution, which is the Supreme law of the land?  Does learned Counsel for the 1st Respondent expect this Court to fold its hands and look on even when it is very clear and borne out in evidence on record that the 1st Respondent has promised to re-locate since 2011 but in vain?  Where will the people of Uganda run to for redress if learned Counsel for the 1st Respondent thinks that this Court is so powerless and impotent?  This High Court of Uganda sitting at Nakawa is not impotent at all, and will not fold its hands to appease learned Counsel for the 1st Respondent while the rights of the Applicants and other persons to a clean and healthy environment are violated with impunity.  I accordingly do hereby make orders and declare as follows:

  1. The continuous air pollution through emission of tobacco smoke, dust and smell to the environment by the 1st Respondent’s factory surrounded by several homesteads is a violation of the Applicants and public’s right to a health and clean environment guaranteed under Article 39 of the Constitution.

 

  1. That the 2nd Respondent as the overall body charged with the management of Environmental issues in Uganda has in the circumstances failed in executing its obligations by allowing the operation of a tobacco factory in a residential area, which factory emits uncontrolled tobacco smell, smoke and dust.

 

  1. I do hereby issue on order restraining the 1st Respondent from continuing to violate the right to a clean and healthy environment.  The 1st Respondent is hereby ordered to stop its operations within 60 days from today and relocate the factory from Kireka to Namanve, the gazzetted Industrial area and approved place of its operations by the 2nd Respondent, NEMA.

 

  1. I also award costs to the Applicants.

 

 

…………………………

W. M. MUSENE

JUDGE

20/10/2014

 

21/10/ 14

Mr. Nuwagira Gerald for Applicants present

Applicants present

Mr. Isaac Bakayana for 1st Respondent

M/S Asinguza Yunis for 2nd Respondent

Betty Lunkuse, Court Clerk present.

 …………………………

W. M. MUSENE

JUDGE

Court:  Judgment read out in open Court.

…………………………

W. M. MUSENE

JUDGE