The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
Read also JIFA's Environmental Country Reports for SADC
The matter concerned an application on whether the Federal Court had jurisdiction to hear a claim for payment against a chartered ship in a contract for the carriage of fish by sea from Argentina to Nigeria. The facts were that the respondent brought an action in the Federal High Court due to a delay by the appellant to take delivery within the time agreed by the parties in the Bill of Lading. The contract however, stated that any dispute arising would be heard in the Courts of Argentina and the applicant challenged the court’s jurisdiction on this basis. The application was dismissed by the Federal Court and the decision upheld on appeal by the Court of Appeal.
The Supreme Court considered whether the lower court had erred in upholding the decision of the Federal Court. It observed that, in the absence of evidence from the respondent on the appellant’s application, there was nothing to consider in favour of the respondent to support their actions contrary to the agreement between the parties, in holding the Federal Court as the proper venue for the hearing and determination of its case against the appellant. It held that in the absence of strong cause shown by the respondent for the trial court not to grant the appellant’s application for stay, the law required that the court exercise its discretion in favour of the appellant by granting the application. Accordingly, the appeal was upheld, and the judgment of the lower court was therefore set aside.
The court considered an appeal against an injunction to restrain the appellants from going onto the disputed land to demarcate, dig, construct etc. any tree on the land until the action had been finally determined. The court considered, 1) the weight of evidence and 2) the capacity of the respondent.
The respondent obtained a customary grant of land 22 years before the action. Later, he obtained a formal lease and was reallocated additional acres of land, which was used to cultivate cash and food crops. Due to development in the area, the respondent’s land was whittled away. The respondent alleged that the appellants trespassed on his land and undertook various activities such as alienation of portions of his land, in the premise.
On the ground of capacity, it was found that once a party’s capacity had been challenged, it should be determined as a preliminary point and the suit can only be heard after this is determined. The court held that the appellants did not raise capacity as a preliminary issue and as such, the manner in which it was raised was a ploy to confuse the trial judge.
On ground of the weight of evidence, the court found that if the injunction had not been granted, the respondents land would have been pillaged and its nature entirely changed. Thus, an injunction was necessary to ensure that irreparable damage was not caused.
The court found that the trial judge exercised his discretion properly and thus the appeal was dismissed and remitted to the trial court for continuation.