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.
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The applicants sought to review and set aside the decision of the first respondent to cancel a lease agreement concluded by the 4th applicant after the 4th applicant disregarded environmental standards on wastewater discharge per the agreement.
The court determined whether the first to third applicants’ irregular appointment as liquidators deprived them of locus standi (capacity) to seek review. It was held that these applicants had the required locus standi.
The court also determined whether the application was brought in reasonable time given the delay in filing the application after becoming aware of the cancellation of the lease. It was noted that there is no prescribed time for the institution of review proceedings. However, the court found that the applicants failed to explain the delay and held it to be unreasonable.
The court held that the relationship between the 4th applicant and first respondent was a contractual relationship. The court considered whether the Municipality validly cancelled the lease agreement before the liquidators’ election to continue with the lease agreement. The court considered clause 16.1 of the agreement and observed that the agreement required no formalities for cancellation. It applied the test of whether a reasonable person would conclude that the proper performance will not be forthcoming and held that the Municipality had a right to cancel the lease.
It was also held that the review relief sought was unsustainable since the decision to cancel the agreement did not constitute reviewable administrative action despite being made by a person who would ordinarily perform administrative functions.
The applicants abandoned their claim for declaratory order to exercise an improvement lien and moved for amendment of the relief in prayer 3. However, the amendment was not requested or granted. Hence the two prayers were dismissed.
Accordingly, the matter was dismissed with costs.
This case interpreted the requirements to qualify for exemptions in s. 47(1) of the Nature Conservation Ordinance of 1975 that allow for the sale of game or game meat or the skins of game which is obviously under the age of one year.
The applicants sought to review a decision by the minister of environment and tourism that revoked and altered the terms of the gaming certificate issued for Erindi farm. The permit was altered to include that it did not apply to game kept in enclosures smaller than 1000 ha. The court found that in doing so, the minister equated the phrase ‘piece of land’ in s. 47(1) (ii) with the phrase ‘enclosure’. This consequently subjected ‘a farm’ to the same requirement governing ‘a piece of land’.
The court noted that not every piece of land in Namibia was a farm. It was held that the respondents’ interpretation of s. 47(1) exemptions was far-fetched. The court held that farms were required to be enclosed with a game-proof fence to qualify for the exemption while a piece of land required the land to be 1000 hectares and be enclosed with a game-proof fence. The court observed that Erindi farm was enclosed with a game-proof fence and should not be subjected to other requirements.
It was also held that the first respondent acted unlawfully for failing to give the applicants an opportunity to be heard.
Accordingly, the respondents were interdicted from enforcing the alterations in the certificate.
Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly
The court considered a criminal appeal against the sentence imposed on the accused.
The accused was convicted, on his own guilty plea, for contravening s 3(1)(a) of the Gold Trade Act by being in possession of 0.15 grams of gold without authorisation.
The evidence revealed that the accused was asked whether there were any special circumstances, which the court below established did not exist and sentenced him to the mandatory minimum sentence.
The accused argued that the trial judge did not explain in full what special circumstances meant and the inadequate explanation prejudiced him. The respondent agreed and stated that the explanation was “special or extraordinary mitigating factors” where it should have referred to special circumstances.
The court found that the Act did not define special circumstances, and it was on a case by case basis. However, the court below took all necessary steps to explain the meaning and import of special circumstances, which was given in clear unambiguous terms.
The court found that the accused was not an illiterate person and appreciated what was taking place and there was nothing preventing him from asking the magistrate for clarity. Further, that the accused’s conduct once arrested, in running away illustrated a guilty state of mind.
The court found that the accused’s special circumstance of “being the only breadwinner” was clear that he was aware of the offence being committed. As such, the court found no merit in the appeal.
This was an application for an order of remedy of spoliation and an interdict.
The applicantĺs main argument was that the actions of the respondentsĺ occupation of the diamond mining site at the Chiadzwa Concession amounted to an act of spoliation against the fifth respondent.
Firstly, the court determined whether the applicant (a foreign company) was required to furnish security for the costs of the respondents before the application could proceed. The court noted that such orders are matters of its discretion and are only issued when there is a reason to believe that a company will be unable to pay the costs of the suit.
Secondly, the court found that the second to fourth respondents had come to court with Ĺdirty handsĺ but had cleansed themselves.
Thirdly, it was held that the applicant (a shareholder of the fifth respondent) had the locus standi to bring the derivative action as an exception to the rule in Foss v Harbottle  2 Hare 461, 67 ER 189.
Finally, the court found that the applicant had proved the elements of spoliation: peaceful and undisturbed possession and the act of spoliation on a balance of probabilities. However, the court held that allowing the fifth respondent to resume mining operations as before, when the right to do so expired, would be contrary to public policy. Nevertheless, the court noted that the applicant was entitled to a final order and ordered the restoration of its rights when the validity of the special grants was regularized.
This was an application to interdict the respondent from disconnecting water supplies from the applicant’s property without a court order and from charging commercial rates for the use of water from the said property.
The applicant submitted that the respondent was infringing on their right to water as provided in s 77(a) of the constitution. In interpreting the right to water, the court found that the right empowers local authorities to levy rates to raise revenue for service provision and does not prohibit disconnections of water services for non-payment. Additionally, the court held that the right to water contains the protection against arbitrary and illegal disconnections. Consequently, when a bill is genuinely disputed there should be recourse to the court before disconnection as per s 69 (3) of the constitution and the holding in Mushoriwa v City of Harare HH 195/14.
The court held that the applicant had proved his right to water but failed to prove the genuineness of his claim, since he did not provide proof letters of complaint disputing the bills. This also had a negative bearing on the grant of the interdict order.
The court also found that the applicant converted domestic premises for use as commercial premises and was not entitled to be charged domestic rates.
The court also noted that the applicant failed to give adequate information which would show that the respondent did not follow the correct procedure in zoning and rating it.
Accordingly, the application was dismissed with costs.
This was an application for an interim relief of setting aside the first respondent’s directive that ordered the applicant to cease their diamond mining operations after the applicant’s rights in a ceded portion of a special grant 4765 expired.
The applicant argued that clause 8 of the grant allowed it to work the sites which were ceded to it for an indefinite period of time. The first respondent countered this on the basis of s 291 of the Mines and Minerals Act that requires special grants to be issued for a specified period of time.
Further, the first respondent argued that no real cession had occurred since the applicant as the holder of the ceded and ‘residual’ portions of the grant were operating outside the law.
The court noted that the first respondent gave the applicants a 5-year period to renew the grant when they allowed the grant to operate outside the law before declaring it invalid, and the applicants still failed to renew it. For this reason, the applicant was found to have approached the court with ‘dirty hands’ since it was in breach of the condition of the special grant and s 29 of the act.
The applicant failed to prove that the first respondent acted unlawfully, unreasonably or disproportionately for the court to apply its review discretion. The court, therefore, held that the first respondent was right in exercising its administrative discretion and pronouncing what the law said.
Accordingly, the application was dismissed with costs.
This was an application for a spoliation order to summarily undo the wrongful deprivation of property without investigating the merits.
The applicants claimed that their immovable property (10 Metcalf Road, Greendale) and equipment for water abstraction were seized by the first to sixth respondents.
The first to the sixth respondents raised two preliminary objections: that the matter was not urgent and that there was need for police to join as co-respondents since they were the ones who had seized the applicants’ property. The first objection was abandoned while the second was dealt with in the merits of the case.
The court noted that the applicants were required to prove peaceful and undisturbed control before the disturbance and that the respondent took or destroyed the control unlawfully. However, the applicant would not succeed if the respondent proved valid defenses like they did not commit the spoliation or that they were not involved in the spoliation.
The court found that the applicants were in peaceful and undisturbed possession of the property and equipment although, illegally. However, the court noted that the applicants claimed that they were despoiled of their equipment by the first to sixth respondents who were not natural persons but failed to state who acted on their behalf. The court therefore held that the respondents were not involved in the despoiling.
Accordingly, the application was dismissed with costs.
The applicant instituted proceedings by urgent chamber applications seeking interim relief against the respondents relating to mining activities in Antelope 68 Mine.
The court ruled on three preliminary objections by the first and second respondents that opposed the validity of the certificate of urgency, the urgency of the matter and that domestic remedies provided in the Mines and Minerals Act were not exhausted.
Firstly, the court noted that a certificate of urgency differs from an affidavit. It was held that the rules allowed the execution of a certificate of urgency by a legal practitioner who is employed by the firm of attorneys which represents the applicant. It was further noted that the validity of the certificate urgency is a cause of concern only when a chamber application is not served to the respondent.
Secondly, the court found that a party must show good cause for preferential treatment that comes with certifying a matter as urgent. The court held that the applicant failed to account for his failure to seek relief on an urgent basis at the very latest soon after the early March invasion when the respondents continued to go to the mine. Consequently, it was held that the matter lost its urgency when the applicant failed to treat it as urgent.
Accordingly, the court ordered that the matter be struck off the roll of urgent matters and did not find it necessary to deal with the third objection. The applicant was also ordered to pay costs.
This was an application for the discharge of the accused persons for lack of evidence pursuant to s 198 (3) of the Criminal Procedure and Evidence Act. The state had alleged that the accused persons were acting in common purpose through a series of fraudulent misrepresentations to the Government of Zimbabwe, the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation (ZMDC) and induced ZMDC to enter into a joint venture agreement of diamond mining with Core Mining (Pvt) Ltd. They fronted Benny Steinmeitz Group Resources (BSGR) as its guarantor and on that representation, the government approved a contract, it never would have otherwise approved.
Relying on the parole evidence rule that posits that parties are strictly bound by the four corners of the contractual document and nothing outside it, the court held that both government and ZMDC cannot be heard to complain that they were duped into signing the contractual document under the mistaken belief that BSGR was standing as guarantor for Core Mining when the contractual document makes no mention of BSGR at all.
Court further held that the state closed its case without leading any evidence pertaining to the misrepresentations allegedly made by the accused concerning the due diligence exercise on Core Mining. That misrepresentation is a vital component of the crime of fraud without which the crime cannot be committed. The state having failed to establish a prima facie case against the accused, it was accordingly ordered that both accused be acquitted and discharged.
Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising
Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority
The origin of the application is an interim interdict prohibiting the first, second and third respondents from carrying out mining activities and ordering the fourth and fifth respondents to clear illegals who were working at the mine. The first respondent sought a review of this order and got an interim interdict that ordered for the eviction of the applicant and prohibition from mining.
This application arose when the applicant sought direction from the judges in chambers for anticipation of a return date and also rescinding the eviction order.
The court applied Order 33 of the High Court Rules and held that the pending review suspended the operation of the order issued in the magistrate court. Consequently, the applicant could not exercise the rights conferred upon him unless the review was determined in his favor.
The court found that the mine lies in the applicant’s plot. However, the court found it important for peace to prevail at the mine and that both parties be removed from the mine pending resolution of their dispute.
The court held that the applicant was able to prove all the requirements of an interdict: he had a right to mine; he would suffer irreparable damage if the respondent continued with their mining operations; he had no alternative remedy and he proved his case on a balance of probabilities against the respondent.
Accordingly, the interdict was granted pending the resolution of the dispute and the security guards of both parties were ordered to guard the mine jointly.
This was an application by the plaintiff seeking an order declaring the first and second defendants’ construction of a milling plant and prospecting activities as unlawful, for interfering with the plaintiff’s agricultural activities.
The first defendant opposed the reliefs sought, on grounds that he was the lawful owner of the mining blocks.
The court first assessed the evidence and concluded that the defendants were not in compliance of the procedures set out under the Mines and Minerals Act, for registering the claims and the subsequent conversion into blocks. The court further held that the defendants failed to show any plan lodged with the Commissioner of Mines, as required under the Mines and Minerals Act.
Lastly, the court determined whether the land in dispute was cleared on or before the registration of the blocks and whether such land is the only portion, suitable of for farming. After outlining the rights of various parties, the court concluded that the plaintiff had no right to clear the land pegged for mining. However, the court could not make a holding on whether the prospecting operations were interfering with the plaintiff’s agricultural activities. This is because the plaintiff failed to
clarify whether the cleared field was located 450 metres from the principal homestead. The court therefore referred this issue to the Mining Commissioner for investigation and report, according to s 345 of the Mines and Minerals Act.
The court ordered the defendants to stop mining operations without complying with the law and to pay costs.
This was an urgent chamber application by the applicant in the High Court to interdict the first respondent from carrying out mining operations on its claim; from interfering with its lawful mining operations; and to desist from acts of uncontrolled violence they had unleashed at the site.
The issue before the court was to determine whether the Mining Commissioner should revisit the same dispute. The first respondent contended that the matter was not urgent since the dispute between the parties had been resolved in favour of the first respondent by the Mining Commissioner. However, it was found that the respondent had been ordered to stop but had allegedly resumed illegal activity.
The court held that in terms of s345(1) of the Mines and Minerals Act [Chapter 21:05] where both parties have agreed in writing, the Mining Commissioner should resolve the dispute regardless of the original jurisdiction of the High Court. It was also found that s346 confers upon the Mining Commissioner judicial power to hold a court in order to determine a dispute in the simplest, speediest and cheapest manner possible. The court held that the Mining Commissioner exercised judicial power including the rules of natural justice and that once he pronounced himself on a matter, he became functus officio and so cannot revisit the same dispute in order to review his own decision.
The court held that the applicant had exhibited proof of lawful registration of the mining claims. Consequently, the appeal succeeded.
The court considered an appeal against the High Court’s decision not to interdict arbitration proceedings.
The facts leading to the appeal were that a joint venture was entered into by the appellant and two mining companies. A dispute subsequently arose which the appellant claimed rendered the contract void ab initio. The first respondent sought a declaration that the contract was valid and soon after, referred the dispute to arbitration. However, the parties failed to agree on an arbitrator and one was appointed by an arbitral institution. Although the appellant boycotted a pre-arbitration meeting, the arbitrator proceeded, identified preliminary issues, and ordered the parties to file submissions. This prompted the appellant to file an urgent application to prevent the arbitration proceedings. The High Court’s refusal grant the interdict is what the appellant appealed against.
Before considering the appeal, the court observed that it was strange that the there was no nexus between the relief sought in the court below and that sought on appeal. The court went on to point out that the appellant refused to correct an error in its citation of the respondent in the proceedings but instead sought to hold out the matter as undefended. This was an abuse of court process. On this basis alone the proceedings could not be sustained.
Accordingly, the appeal was dismissed. The court held that the wrong citation was compounded by the appellant’s refusal to rectify the error and made an order for exemplary costs.
The applicant in this High Court case was seeking interim orders that (1) the first and second respondent be ordered to restore the supply of water from Blanket Dam in Gwanda to the applicant’s mine; (2) the first and the second respondent be interdicted from interfering with the applicant’s possession of his water supply infrastructure without obtaining a court order to that effect.
The facts were that the first and second respondent disconnected the water supply that fed the applicants mine and the neighbouring community. The applicants argued that the respondents infringed its right to water under s77 of the Constitution of Zimbabwe. The respondents, on the other side, argued that the matter was not urgent, and they were entitled to disconnect the water supply as the applicant failed to pay the water bills, thereby ending the contract between them.
Thus, the main issue for determination was whether the applicant had satisfied the requirement for an interim order to be issued;
On the first issue, the Court held that the applicant had satisfied the requirements for an interim order which are, (i) prima facie right; (ii) reasonable apprehension of irreparable injury; (iii) no alternative relief available; (iv) and the balance of convenience favouring the granting of the interdict.
As a result, the interim order was allowed pending the main trial and the hearing of the interdict.
This was a criminal trial in which the accused was charged with two counts for contravening the Mines and Minerals Act and the Money Laundering and Proceeds of Crime Act.
The court determined whether the accused misrepresented that he had the mandate to sell a special grant which prejudiced the buyers. In finding the accused guilty of fraud, the court pointed out that the accused mispresented that he had the authority to deal with a coal mining concession held under a special grant. Through the misrepresentation, the accused personally benefitted from the proceeds. The court further pointed out that the moment the accused benefitted from the criminal activity, the property became proceeds of crime. The accused further received occupation of the immovable property which he was not entitled.
On the criminal charge against the accused for ceding a mining right to a third person without the consent of the president, the court held that the section does not create a criminal offence. It merely sets out the characteristics of the special right and how it can be assigned.
The accused was found guilty on both counts and sentenced to 10 years imprisonment, with 2 years suspended for 5 years. Further 4 years were suspended on condition that the accused paid restitution to the complainant. Effectively, the accused was sentenced to 4 years imprisonment.
This was an urgent application by the applicant, seeking an order to stop the respondents from mining gold ore from an area which the applicant had a prospecting licence.
The court set out the requirements of an interdict and held that the applicant was required to prove the existence of a prima facie right. Secondly, that there was an injury actually committed or reasonably apprehended. Thirdly, that there was an absence of a similar or adequate remedy. Lastly, that the balance of convenience favoured the grant of the relief.
The court pointed out that the applicant had other remedies available. Such remedies included using the Ministry of Mines to demarcate the area between the parties. Secondly, ore claimed by the applicants was held as an exhibit in a criminal case, thereby removing urgency in the application and any irreparable harm that could be occasioned by waiting.
Accordingly, the court declined to deal with the matter on urgent basis, dismissed the application and ordered the applicants to pay the respondents’ costs on an ordinary scale.
This was an application for a decree of perpetual silence against the respondents for engaging in lawsuits aimed at harassing the applicants. The dispute between the parties emanated from certain claims in a mine, which resulted in over 30 court applications between the parties.
The court first dealt with the nature of the relief sought by the applicants. The court after citing authorities pointed out that the relief is recognised in the jurisdiction of the court. The court pointed out that in cases where repeated and persistent litigation between parties, in the the same cause of action, the court can make a general order prohibiting the institution of such litigation without the leave of the court. It was noted that such a remedy is extraordinary as it makes a person deaf before the court. The court also pointed out that the remedy is only granted where a party demonstrates to the court that the defendant or respondent is a serial litigator, with a tendency to abuse the court, the court process and the other party.
In dismissing the application, the court dealt with the history of the litigants and concluded that the respondents had a defined cause and were not serial litigators.
The court dismissed the application with costs on a higher scale.
This was an appeal in the Court of Appeal against a judgment of the High Court which had dismissed an appeal to it against a judgment of the Judicial Commissioner’s Court, the effect of which was to uphold a decision of a local court. The issue concerned the removal of wood from a plantation by the appellant, which the respondent contended belonged to the community of which he was a headman. The appellant’s reasoning that the plantation was situated in his grandfather’s field was rejected by the court which ordered the appellant to desist from using the plantation and never to use it. The appellant was not satisfied with the ruling, so he appealed unsuccessfully, first to the Central Court, then to the Judicial Commissioner’s Court and finally to the High Court.
The issue for the court’s consideration was whether the local court had the jurisdiction to hear the matter.
The court observed that the matter concerned provisions of the Chieftainship Act 22 of 1968 pursuant to which the judge held that the finding by the Office of the Chief did not preclude the appellant from seeking recourse in the Local Court. The court upheld the High Court judge’s view that the dispute between the parties was not a dispute involving claims to; title, exemption from title, or overriding title. Therefore, the submission that the dispute must be dealt with in the Land Court or the District Land Court was not upheld. The appeal was dismissed with costs.
The court considered a petition brought by the applicants against the decision of the Director of Public Prosecutions to charge them with murder.
The petitioners argued that they were employed as rangers in the Wildlife Service and being lawfully armed in the course of their duties, they confronted suspected armed poachers and shot two of them. They contended that the failure to hold an inquest as prescribed by ss 385 and 388 of the Penal Code, before they were charged amounted to a breach of their constitutional rights.
The court considered whether the applicants used their weapons lawfully and in the course of their duties. Further, whether under the circumstances, an inquest was a prerequisite.
The court considered the import of ss 386, 387 or 388 of the Penal Code and found that in the circumstances it was clear that an inquest ought to have taken place. Further, it observed that while the respondent proceeded as if an inquest had been conducted, no inquest, as known in law, was ever conducted and the “inquest” the investigators passed off as having been conducted, had no legal basis.
The court held that the decision to charge the petitioners with the offences of murder violated article 157 (11) of the Constitution and by the same token infringed on the petitioner’s rights under articles 27(1), 47 (1) and 50 (1)(2) of the Constitution
Accordingly, the court allowed the petition and declared the decision of the DPP to charge the applicants a nullity.
The court considered an appeal against the conviction and sentence of the appellant, for the killing of an animal, possession of government trophy and failure to report being in possession of government trophy.
The appellant sought leniency and a lighter sentence on the ground that he had reformed. The respondent opposed the appeal and urged the court to uphold, both the conviction and sentence, and maintained that the evidence by the prosecution’s witnesses established the case against the appellant beyond reasonable doubt.
The main issue for the court’s consideration was whether at the trial, there was sufficient evidence to sustain the conviction and sentence of the appellant.
The court found that although the evidence was circumstantial, there was no plausible explanation as to how the appellant came to be in possession of the tusks stolen from the dead elephant. Further that between the discovery of the carcass and arrest of the appellant, there were no intervening factors to weaken the inference of guilt.
The court observed that the appellant was sentenced under the earlier Wildlife Conservation Act, Chapter 376 which had since been repealed. The sentence was more lenient than those introduced by the amended act, thus the sentence was neither excessive, nor wrong. Accordingly, the court held that the appellant had been properly convicted and dismissed the appeal on both sentence and conviction.
The court considered a petition against various statutory bodies and offices, who were responsible for land. The petitioners contended that the land in question had been jointly purchased by their late fathers but they were tricked by the respondents, on various occasions, when their land was acquired forcibly without compensation. Subsequently the respondents declined to issue them with a title, purporting that they had surrendered their lease titles for further subdivisions.
The respondents alleged that the petitioners had no standing to institute proceedings and that this was an abuse of process, as parts of the land had been sold and payment received by the deceased parents.
The court considered whether there had been a violation of the petitioners’ right to property. The court found that the act of the first respondent of surrendering back to the government part of the parcel of land, which was bought by the petitioner’s father, was an act of compulsory acquisition which required compensation. The respondents failed to show that such compensation had been given.
In conclusion, the court upheld all the petitioners’ prayers and ordered that they were entitled to Kshs. 4,132,942,326.49 billion, being fair compensation for the loss of land with costs to the petitioners.
The court considered a petition whereby the petitioners averred that they were land owners on which a wind farm was to be developed. The respondents bought the project rights from the initial owners whose application for the construction of the farm had been successful and sought to expand the farm. They obtained permission from the National Environmental Management Authority (NEMA) by renewing the initial project application.
The petitioners alleged that this was against the provisions of the Environmental Management and Coordination Act and the Constitution as the expansion was not implemented in accordance with the law and would violate their constitutional rights to a clean and healthy environment and their rights to own property. The expansion entailed the farm would encroaching onto their surrounding properties.
The issue faced by the court was whether the expansion was legal and whether the rights of the petitioners had been violated or not.
The court held that the expansion could not be logically carried out at the site captured in the original Environmental Impact Assessment and the EIA study report initially filed with NEMA. It could therefore, not be renewed. They had to file a new application and therefore the renewal of the application was contrary to law.
This failure to adhere to the EIA regulations potentially threatened the petitioners’ right to a clean and healthy environment but not their right to own property as the farm did not make use of their land nor did it threaten to use it up.
The court considered a petition against the government’s failure to recognize the petitioner’s right to property and the right to just compensation when it deprived a person of their property. The case involved the construction of a standard gauge railway (SGR) through private land. The petitioner contended that his right to property and just compensation had been violated and that the third respondent had failed to ensure that the appropriate environmental and social impact study of the SGR was undertaken.
The court considered firstly, whether the compulsory land acquisition was carried out in accordance with the Constitution and the law, and secondly, whether the construction of the SGR was in compliance with environmental laws and the Constitution.
The court found that the first respondent had accorded the land owners with the requisite notices and at the enquiry, as required by law, many obliged to the acquisition and were paid. Further, that the petitioner’s reliance on a repealed act was unsupported, and that he had not shown any substantive section of the Land Acquisition Act that was misapplied by the respondents through the process of compulsory acquisition, thus there was no violation of the Constitution.
The court found that an environmental impact assessment had been conducted and that the respondents took into account, all environmental considerations including sustainable development. Accordingly, the petition was dismissed.
The court considered an appeal against a decision in the Environment and Land court, declaring that the respondent had trespassed on the applicant’s premises and that the respondent be ordered to vacate the area and demolish and structures it had erected.
The respondent alleged that it had settled in the area 45 years prior and had inherited the land from his father.
The appellant alleged it had purchased the property in 1994 but had not occupied or used the land. The lower court held that by the time the action was brought in 2008 there was evidence that the respondent had been in occupation for a period of time that would entitle him to raise the defense of limitation, and after the expiration of over 12 years, the appellant was precluded from bringing an action to recover the premises.
The question was whether the respondent had been in possession of the premises for over 12 years as at the time the suit to evict him was instituted in 2008, and whether his possession was averse to that of the appellant?
The court held that the relevant period would be between 1994, the date of registration of the appellant as the proprietor, and 2008, when the suit was filed. It held that the period translated to 14 years which meant the respondent could legitimately base his claim and dealt with the premises as if it was exclusively his. Thus dispossessing the appellant of its right to the land.
The court considered a petition stop the development of flats within a residential area. The property was initially planned as a single dwelling unit but the developer applied for change of user to multiple dwelling units which was approved. The petitioners claimed that the change of user was irregularly granted and claimed that approval from the National Environmental Management Agency was improper because the county government approved the change of user despite multiple objections from the public.
The petitioners sought an order declaring that the decision of the first respondent to change the user was unconstitutional and null and void. Further, that the approval of the re-development amounted to a dereliction of duties.
The court considered 1) whether a proper Environmental Impact Assessment was conducted, 2) whether the process of planning approval was lawfully adhered to and, 3) whether there was a violation of the petitioners' constitutional rights.
It held that the NEMA processes were casually done as objections to the project, were not given a hearing and were not considered before the decision to allow the project was made.
Further, it held that there was no consultation with interested parties as was required by the law. This meant that no proper EIA was carried out and therefore the process of planning approval was legally flawed.
As a result of this, the court held that claims for violations of the right to a clean and healthy environment were breached or at the very least, under threat.
The court considered an application for judicial review on the ground that the decision of a magistrate to grant an injunction was ultra vires (i.e beyond the powers). The applicant contended that the magistrate lacked jurisdiction to make such an order and as such the order was a nullity. The respondent argued that the application was misconceived; that it had jurisdiction and that the applicant had failed to lodge an appeal which meant that the remedy of judicial review was not available to it.
The court considered whether the respondent had the jurisdiction to consider the matters before it. The court also considered whether the applicant exhausted other equally convenient, beneficial and effective alternative remedies which were available under the law.
The court found that although the application was brought in terms of the Forests Act, such dispute ought to have been brought before the National Environment Tribunal.
The court found that the learned magistrate acted without jurisdiction and in excess of statutory authority, contrary to Section 63(2) of the Forests Act to receive, entertain, hear and otherwise deal with the said case as the proper forum to hear and determine the interested party’s claim, would have been the National Environment Tribunal. On this basis, the decision issued was ultra vires and thus a nullity ab initio. Accordingly, the court set aside the decision of the magistrate.
The court considered an appeal against the decision of the court below, dismissing an application for judicial review. The issue for consideration was whether the doctrine of res judicata applied to judicial review.
Res judicata refers to a matter which has been heard by a competent court and cannot be pursued further by the same parties.
The 16th respondent alleged that the Minister had used the information from them to grant permits to the parties named as interested parties, in respect of the concerned areas and that such licenses should be revoked. Further that the interested parties cease operations in the areas immediately.
The court below dismissed this, prompting a review by the 16th respondent, who sought an order “compelling the respondents to vacate and stay out of the disputed areas. This was based on the interested parties trespassing on the disputed land.
The interested parties argued that the court could not entertain the matter because of the principle of res judicata. However, the court below held that res judicata did not apply to reviews.
The court in this instance held that the basis upon which the 16th respondent instituted the previous judicial review application was essentially the same basis upon which the subsequent judicial review application was based and was thus res judicata. Further, that the subsequent judicial review application was not only barred by the doctrine of res judicata, but was also an abuse of court processes
This was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee.
The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.
Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.