EXECUTIVE DIRECTOR NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA) V SOLID STATE LIMITED (Civil Appeal Number 0239 of 2013.)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that cancellation of the respondent's environmental certificate without any hearing violated Articles 28(1) and 42 of the Constitution and the rules of natural justice, so certiorari was properly granted. Damages may be awarded in judicial review under Rule 8 of the Judicial Review Rules 2009. The award of UGX 400,000,000 general damages and 20% interest for the commercial project was upheld as not excessive. However, the special damages award was set aside because certiorari restored the status quo; the rock, road, explosives and equipment remained available for the resumed project, and the rock belonged personally to a non-party. Suing the Executive Director was competent. Appeal substantially dismissed except as to special damages.

Outcome

Appeal substantially dismissed; certiorari and general damages of UGX 400,000,000 with 20% interest upheld; special damages set aside

Facts

Solid State Limited, a stone quarrying company, obtained an Environmental Impact Assessment certificate from NEMA on 16 July 2012 to quarry rock at Lubani village, Jinja District. In preparation for commercial quarrying, it borrowed money, purchased and hired equipment, acquired rock, constructed access roads and entered supply contracts with construction companies. Following complaints about the location of the activities and an inspection revealing non-disclosure by the District Environment Officer, NEMA suspended and later cancelled the certificate without granting the respondent a hearing or specifying the complaints for it to answer. The respondent sought judicial review in the High Court, which granted certiorari quashing the cancellation and awarded special damages of UGX 896,000,000 and USD 17,595, general damages of UGX 400,000,000, and 20% interest. NEMA appealed. The rock purchase agreements were in the personal name of the respondent's Managing Director, and no evidence of a special arrangement to transact for the company was produced.

Issues

1. Whether the respondent was accorded a fair hearing before cancellation of its Environmental Impact Assessment certificate.
2. Whether the trial judge properly exercised his discretion to grant an order of certiorari.
3. Whether damages, particularly special damages, could be awarded in a judicial review application and whether they were properly pleaded and proved.
4. Whether the award of general damages was excessive.
5. Whether the interest rate of 20% per annum was justified.
6. Whether the application against the Executive Director of NEMA, a non-corporate office, was competently instituted.

Orders

• Appeal substantially dismissed save the part dealing with special damages.
• Order of certiorari quashing the appellant's orders of 13.08.2012 and 14.09.2012 suspending and cancelling certificate No. NEMA/EIA/14206 upheld.
• Award of general damages of UGX 400,000,000 upheld, with interest of 20% from the date of the High Court judgment (29 September 2013) till payment in full.
• Award of all special damages set aside.
• Respondent to have 70% of the taxed costs here and in the court below, with a certificate of two counsel.
• General damages, interest and costs to be paid by NEMA on whose behalf the Executive Director acted.

Rules and key headnotes

Legislation cited (13)

• Judicature Act cap 13 s.33
• Judicature (Judicial Review) Rules 2009 r.8
• Civil Procedure Rules Order VI rr.1-5
• Civil Procedure Act s.26
• Constitution of Uganda art.28(1)
• Constitution of Uganda art.42
• Constitution of Uganda art.8A(1)
• National Environment Act cap 153 s.22(4)
• National Environment Act ss.12 and 13
• Uganda Revenue Authority Act ss.9 and 11
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.30
• Land Act s.91
• Government Proceedings Act s.19

Cases cited (21)

• Regina Vs Race Relations Board 1WLR (1975) P.1686
• [2005] UKHL 5
• Attorney General Vs. Kim. DotCom and others, 2013 NZCA
• Canada (Attorney General) Vs. Telezone Inc. 2010 SCC
• Longdon Griffiths Vs Smiths & others, [1950] 2 ALL ER 661
• Walji Vs. Semakula (1999) 1EA 361
• Charles Harry Twagira v Attorney General (Civil Appeal No. 4 of 2007)
• Commissioner General URA v Meera Investments Ltd (Civil Appeal No. 22 of 2007)
• Gordon Sentiba v IGG (Civil Appeal No. 6 of 2008)
• Kikonda Butema v IGG (Constitutional Petition No. 14 of 2007)
• American Procurement Co. Ltd v Attorney General (Civil Appeal No. 35 of 2009)
• American Express International Banking Corporation Vs ATW [1990-1994] EA 10(SC)
• [1964] AC 40
• Charles Lwanga v Centenary Bank (Civil Appeal No. 30 of 1999)
• Uganda Breweries Limited v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
• Kahiya Vs. Nganga [2004] UGCC 7
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1992)
• Active Automobile Spares Ltd v Crane Bank and Rajesh Pakesh (Civil Appeal No. 21 of 2001)
• Seviri Vs Uganda Land Commission HCB [1979]
• [1949] 1 KB 643
• Uganda Revenue Authority v Wanume David Kitamirike (Civil Appeal No. 43 of 2010)

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