Wakilii

Oluma & Anor v Excel Construction Ltd & Ors (HCT) [2013] UGHCCD 91

High Court · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for restraining order and environmental restoration order under Articles 39 and 50 of the Constitution and Section 3 of the National Environment Act
Decision
Application dismissed as respondents obtained required approvals (EIA certificate from NEMA and municipal approval) and redesigned the project to address applicants' concerns

Observed later treatment

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Holding

Held that NEMA lawfully granted EIA approval to Arua Regional Referral Hospital even after project commencement, as section 19 of the National Environment Act does not prohibit post-commencement approval and NEMA's mandate under section 6 extends to existing projects. The application was dismissed as overtaken by events, as the respondents obtained the EIA approval and municipal council approval that had originally been lacking, and redesigned the lagoon addressing community concerns. No environmental restoration order was warranted where the disputed project had been abandoned and replaced with an approved redesign.

Outcome

Application dismissed as respondents obtained required approvals (EIA certificate from NEMA and municipal approval) and redesigned the project to address applicants' concerns

Facts

The applicants owned properties near Arua Regional Referral Hospital. Excel Construction commenced building a sewerage lagoon without EIA approval or municipal council approval. Applicants challenged construction under Articles 39 and 50 of the Constitution. Arua Municipal Council stopped the works. The court granted a temporary injunction on 27 April 2010. After the application was filed, the hospital engaged consultants who conducted extensive community consultations with 145 stakeholders. The consultants prepared an EIA statement rejecting the original design and recommending a modified lagoon design with mitigation measures for environmental impacts. NEMA issued EIA approval on 10 February 2011 with conditions. Arua Municipal Council approved the revised drawings on 15 March 2011. The applicants' properties were 93m and 110m from the proposed lagoon site, beyond the 60m compensation threshold. Three other property owners qualified for compensation. Construction remained stopped pending the court's ruling.

Issues

  1. Whether NEMA lawfully issued a certificate of approval of Environmental Impact Assessment to Arua Regional Referral Hospital
  2. Whether the court can cancel the Environmental Impact Assessment certificate of approval
  3. Whether the application was overtaken by events and no longer triable
  4. Whether an environmental restoration order can lawfully be granted as section 71 of the National Environment Act is independent of section 19

Orders

  • Application dismissed as overtaken by events.
  • Ordered that the new project be implemented strictly in conformity with the conditions set out by NEMA.
  • No order as to costs.

Rules and key headnotes

Environmental Impact Assessment — Post-Commencement Approval — NEMA's Power to Grant
Under the National Environment Act, NEMA has power to grant EIA approval even after a project has commenced, as section 19 contains no provision limiting NEMA's power to pre-commencement stage only, and section 6(1) expressly mandates NEMA to ensure proper safeguards in projects already in existence that have or are likely to have significant environmental impact.
Environmental Impact Assessment — Developer's Obligation — Timing of Approval
A developer is under mandatory obligation to obtain EIA approval before commencing a project where NEMA decides such approval is required under section 19, and failure to obtain approval before commencement constitutes an offence under section 96 of the Act and regulation 36 of the EIA Regulations, but this obligation on the developer does not restrict NEMA's statutory power to grant approval at any stage.
Environmental Impact Assessment — Community Consultation — Standard of Proof
Where an EIA report shows photographic evidence of community consultations, attaches a list of 145 persons consulted with signatures, physical addresses and telephone contacts, including elders, local councillors, ordinary residents and LC officials, and the consultants state they consulted all stakeholders, a complaint of non-consultation fails unless evidence in rejoinder challenges those facts.
Environmental Impact Assessment — Procedural Compliance — Approval Validity
Where NEMA's approval follows the procedural steps required under regulations 5, 6, 7, 8, 9, 13, 14, 17, 18, 24, 25(b) and 26(a) of the Environmental Impact Assessment Regulation S.I. 13/1998, and the lead agency has reviewed and recommended the EIA statement for approval, the certificate of approval is lawfully granted and cannot be cancelled by court.
Mootness — Application Overtaken by Events — Test
An application is overtaken by events and not triable where the specific relief sought has been granted or realized before the hearing, and proceeding with the trial would be for academic purposes only, as courts adjudicate on issues which actually exist between litigants and not academic ones, and court orders must be capable of enforcement and of practical effect.
Environmental Restoration Order — Conditions for Grant — Section 71
Under section 71 of the National Environment Act, court has power to issue a restoration order against any person who has harmed or is harming or is reasonably likely to harm the environment, and while section 19 is limited to matters in Schedule III, section 71 is open and applies to both Schedule III matters and any other matter where the environment is harmed or likely to be harmed, but no restoration order is warranted where the challenged project has been abandoned and replaced with an approved redesign.
Amendment of Pleadings — Delay Beyond Prescribed Period — Article 126(2)(e)
Where an applicant delays one year and four months to file amended pleadings after leave to amend was granted, in breach of the 14-day requirement under Order 6 rule 25 CPR and without seeking extension of time, the court may nonetheless allow the amendment under Article 126(2)(e) where dismissal would occasion further delay in already protracted proceedings, but such exercise of discretion is based on peculiar facts and should not be taken as precedent.

Legislation cited (38)

Cases cited (4)

  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010)
  • Advocates Coalition for Development & Environment v Attorney General (Misc. Cause No. 100 of 2004)
  • Sheer Property Ltd v NEMA (Misc. Cause No. 232 of 2008)
  • Environment Action Network Ltd v Joseph Eryau (Civil Application No. 98 of 2005)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Oluma & Anor v Excel Construction Ltd & Ors (HCT) [2013] UGHCCD 91 (21 June 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.