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 emissionunder 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