Environmental Case Law Index

The court considered an appeal against the decision of the House of Representatives. It passed a resolution directing the Respondent to pay to the Appellant compensation in the sum of $1.5 Billion for damages/compensation for environmental degradation of the Appellants' communities by oil drilling. 

The High Court ordered the Respondent to comply with the resolution and pay to the Appellants the said sum. However, the respondent was able to obtain a stay of execution of the judgment in the trial court granted that the applicant deposits the outstanding amount pending the outcome of the subsequent appeal.

The Respondent wanted this varied and was successful. The applicant disputed this before this court pleading for unconditional stay of execution.

The court had to determine whether there were justifiable reasons to grant an unconditional stay of execution. 

The court held that a stay of execution, conditional or unconditional, is granted at the discretion of the court and an appeal court will only interfere where the discretion was wrongly exercised or irregular.

The learned justices of the Court of Appeal took into consideration the consequences of an unsuccessful appeal and a successful one, and came to the conclusion that an unconditional stay of execution met the justice of the case since the Respondent (in this appeal) had assets within the jurisdiction of the court to defray the judgment sum. The facts and circumstances clearly did not support tying down $1.5 Billion to await judgment at the end of lengthy appeals. 

The appeal was thereby dismissed. 

This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.

The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.

The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.

The first plaintiff concluded a tribute agreement with the second and third defendants that was to last for ten years. The Mining Commissioner rejected this agreement since it was not registrable. This agreement was replaced by a three-year tribute agreement. When this agreement expired, the first plaintiff entered into another agreement with the second plaintiff and they sought an order registering this agreement and the eviction of the second and third defendant. The eviction order was opposed on grounds that the first agreement was still valid.

In interpreting s289 and 290 of the Mines and Minerals Act on tribute agreements, the court made a distinction between directory and peremptory provisions. The court noted that it is impossible to lay down any conclusive test to distinguish the two provisions. However, provisions in negative form and containing penal sanctions are to be regarded as peremptory rather than directory. The court also noted that the intention of the legislature is to be considered when distinguishing the two.

The court found that the provisions were couched in negative form and that their contravention was to be visited with penal sanctions, hence peremptory. Additionally, it was found that the approval was meant to protect the interests of the tributor and to avoid premature cessation of mining operations.

Accordingly, the court declared that the first agreement was invalid and unenforceable; and that the second agreement was valid but had expired. Consequently, the second and third defendants were ordered to vacate or be evicted.

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

This matter dealt with a dispute as to whether there was illegal mining by the respondent on the applicant’s exclusive prospecting licence.
The High Court considered whether expert evidence was required to establish a cause of action. The relevant test was whether a witness proffering an opinion is competent to give one on the matter in dispute. In this case, the court considered that only a land surveyor would be competent to determine the precise boundaries of disputed land. The applicant’s witness was a geologist and not a land surveyor. Accordingly, the court held that expert evidence of a land surveyor was necessary and failure to present it was fatal.
The court also considered whether it was permissible for the applicant to introduce new evidence in the replying papers. The court relied on the principle that in motion proceedings the affidavits constitute both the pleadings and the evidence. Furthermore, the applicant could not substitute a different claim in the replying papers. Accordingly, the court did not consider the evidence of the land surveyor tendered by the applicant during motion proceedings.
Finally, the court considered whether to impose a special costs order against the applicant on the scale as between attorney and own client. The principle followed was that punitive costs should only be awarded in exceptional circumstances. The court considered that there was no demonstrable reprehensible conduct by the applicant. Accordingly, the costs only include the costs of one instructing and one instructed counsel.