Microsoft Word - Casebook on Environmental law

THE REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM

CIVIL CASE NO. 29 OF 1998.

JOSEPH D. KESSY AND OTHERS ............................. PLAINTIFF
VERSUS
THE CITY COUNCIL OF DAR ES SALAAM..............DEFENDANTS

BEFORE: THE HON. JUDGE MR. LUGAKINGIRA

Waste – garbage disposal – nuisance- final injunction granted – successive stays of execution.
Public authorities – duties thereof – statutory authority of City Council to ensure health of its
citizens – limits of discretionary authority – statutory offences – whether impliedly authorised by
stay of execution – whether stay of execution was intra vires.
Right to life – Article 14 of the Tanzanian Constitution – court cannot by stay of execution
sanction breach.

The city council of Dar es Salaam applied for extension of time on a stay of execution against
judgement obtained by the plaintiffs. The plaintiffs’ original proceedings against the Council
concerned a garbage dumpsite in Tabata which was combed by traders for food stuffs which were
later sold for human consumption. The High Court of Tanzania in a previous judgement had
issued exparte injunction requiring the Council to cease dumping and burning garbage in that area
and ordered Council to construct a site at an alternative site. In response Council sought a review
of the decisions and applied to have the execution of order stayed. Court granted Council’s
request on grounds that an alternative site would be available in 2 years and 3 smaller one in one
year. Council sought extension of time a number of times which included the current application
to establish an alternative garbage dump near the originally proposed site at Tabata.

HELD:

1. The grant of a stay of execution against the injunction should be quashed because it
   nullifies the very purpose of the injunction and effectively vacates the original
   judgement.


2. A public authority has no grounds to seek a remedy from a court to pollute the
   environment or to endanger people’s lives regardless of the presumed greater good.


3. The Constitution provides for a right to life and to the protection of that life by society.
   The extension granted by court enabled the dangerous threat to the lives and
   environment of the residents to continue and was therefore in violation of the
   Constitution.


4. In exercising their discretionary authority, statutory bodies are not permitted to create a
   nuisance. The Council’s actions at Tabata constitute a tort and cannot be supported by a
   court remedy, even one of a procedural character such as stay of execution.


5. The Penal Code makes it an indictable offence for a person to voluntarily pollute the
   environment. The effect of court’s granting successive stays of execution was implicitly
   to support the contravention of the criminal law by the Council.


6. An inherent duty of the court is to protect the individual from the excesses of the
   executive arm of government. On the merits, the application and grant of extension
   sought is illegal, injudicious and oppressive.

Application dismissed.