Muzaale v National Environment Management Authority (Miscellaneous Application 103 of 2024) [2024] UGHCCD 81 (17 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 0103 OF 2024 (ARISING FROM MISC. CAUSE NO. 006 OF 2024)**

**MUZAALE SIMON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY:::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### *BEFORE: HON. JUSTICE SSEKAANA MUSA*

#### **RULING**

This is an application under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act and Order 41 of the Civil Procedure Rules for orders that;

a) A temporary injunction doth issue restraining the respondent and/or any of its servants or agents or any person from enforcing and or implementing in anyway of the *STOP ORDER and ENVIRONMENT RESTORATION ORDER* issued by the respondent on the 17th day of November 2023 and 1st November 2023, on the Applicant's land comprised in Block 106 Plot 1543 Land at Nvunwa which were arrived at illegally, irrationally, unreasonably, and in breach of the rules of natural justice, including the resolutions to stopping the applicant from re-developing the property pending the hearing and determination of the judicial review Application.

The application for temporary injunction was supported by an affidavit in support sworn by Mr. Muzaale Simon.

- 1. The applicant is the Registered Proprietor of the land comprising Block 106 Plot 1543 land at Nvunwa, having purchased the same from its former Registered Proprietor Marvel International Limited and obtained a title on the 11th April 2022. - 2. Before the purchase and transfer of the land to the applicant, the previous registered proprietor Marvel International Limited was desirous of starting a car depot sought the indulgence and approval of the respondent and was subsequently granted a Certificate of Approval of Environmental Impact Assessment running from May 17- May-2021 and the same was extended for five years ending April, 2026. - 3. That whilst acting under the terms and conditions of the EIA aforementioned, the previous Registered proprietor obtained all the necessary approvals from the respondent, Municipal Council among other authorities, commenced and concluded construction of a wall fence, toilet block, small back-end rooms, a temporary storied structure, a gate and backfilling of the premises (project) at the watch and authorization of the respondent. - 4. That the applicant has since the purchase of the said premises never made or added any constructions to the said land and the status quo is still as was passed on or developed by the former registered proprietor while acting on approvals and terms of the authorities/respondent. - 5. That the respondent issued a Stop Order and Environment Restoration Order against the applicant, which decision was fraught with procedural irregularity, illegality, arbitrary and irrational; and is thus unjust and unfair to the applicant. - 6. The applicant's interest in the land is threatened by the respondent's orders which require among others to vacate the land, which decision is arbitrary, callous and inconsiderate of the applicant's right to property.

- 7. The applicant has suffered and has continuously suffered insurmountable loss and loss of earnings as a result of the respondent's actions which involve arresting him and his agents, confiscating and destroying property on the land, and now issuing a Stop Order and Environment Restoration Order irrationally, illegally and inconsistently. - 8. That the respondent did not follow due process in reaching its decisions, there was no adherence to the constitutional right a fair trial and expeditious hearing, and as a result there was unfair and unjust treatment.

While the respondent filed an affidavit in reply sworn by Dr Barirega Akankwasah–the Executive Director and Chief Accounting Officer of the respondent;

- 1. The respondent in their affidavit contended that under the law, the respondent has powers to issue environmental notices and orders including environmental restoration orders, prohibition orders and stop orders and effect such service of such orders on the responsible person to take action on obligations stipulated therein and such orders continue tom apply until complied with. - 2. That the decision to issue restoration order and stop order were legal rational and justified and do not in any way from justification to a grant for an injunction against the respondent, a statutory body, to stop executing its duties. - 3. That the applicant has not exhausted the avenues of relief which entail an appeal and or a review of a decision of the respondent under sections 132 and 140 of NEMA Act which renders this application premature and incompetent.

4. That the measures are in place to stop activities and restore the degraded area and they are intended to prevent further degradation and damage to the environment and is clearly in enforcement of the law and in execution of the respondent's statutory mandate which includes guaranteeing every person living in Uganda a right to a clean and healthy environment which is endangered by the applicant's illegal activities.

The applicant was represented by *Bamuhabura Joseph* while the respondent was represented by *Herbert Chesiyey* and *Doreen Tumuheirwe*

The parties filed their respective submissions which I have considered in this ruling.

### *Whether the court should issue a temporary injunction in this matter?*

The applicant's counsel submitted that the applicant is challenging the stop and restoration orders which are likely to lead in the eviction of the applicant from the disputed land and this would render the main application nugatory. The applicant seeks to maintain the status quo decision such that the respondents are restrained from enforcing the stop and restoration order with respect to the suit land.

The applicant contends that the stop and restoration order is being challenged in the main application for judicial review for illegality, irrationality and procedural impropriety. It is their submission that the main application raises triable issues and the affidavit evidence of the applicants demonstrates that there is a prima facie case warranting the grant of temporary injunction.

The applicant further contends that he will suffer irreparable injury or damage if the respondent is not restrained considering that on the said land the applicant holds sentimental attachment having invested all his future lifetime retirement and pension for the benefit of guaranteeing sustenance and livelihood on the project.

That the cost to be incurred by the applicant due to the respondent's unlawful actions is unimaginable and irrecoverable in the damages sought in the main application, hence this exorbitant cost is factually irreparable. In addition, the respondent threatens to continue arresting the applicant as a mode of enforcement of their orders.

The respondent's counsel submitted that in an application for temporary injunction court must look at the respective situations of the contending parties to determine the real issue on trial. The traditional rule in regard to the basis of a claim for judicial redress is that the person must show that he/she has suffered a legal injury of violation of his right. For the equitable remedy of injunction to issue, the applicant must clearly demonstrate that there is no form of illegality on his part, which is not the case

The respondent counsel further contended that there is no relationship between the applicant and respondent that is capable of rendering breach save for his offending actions in the environment in contravention of the laws and clear statutory duties of the respondent to direct his actions.

The respondent submits that the interventions and orders issued by the respondent were clearly informed by the breach of conditions of approval. The respondent would suffer irreparable damage of the degradation of the wetland system and its functionality which extends to all person living in Uganda. The actions of the applicant if not stopped would have grave impacts that are hydro-logical, ecological and socio-economical in nature and thus hard to compute and subject to pecuniary measurements.

The applicant should not be allowed to disguise illegal activities under a claim of interference with enjoyment of a constitutional right to property. As property owner or user, he is the subject of regulation as clearly provided under Section 44 of the Land Act which provides that land ownership is subject to the laws governing ecologically sensitive areas. This application is seen as an escape route for him to avoid adhering to the laws governing his activities.

## *Analysis*

A temporary injunction is a pre-emptive remedy. It is preventive in its nature. By its very nature is interim or interlocutory. Its duration is tentative, provisional, impermanent, mutable not fixed or final or conclusive. It is characterized by its for-the-time-beingness. It emanates from one of the most valuable features of equity jurisdiction to anticipate and prevent injury.

It is a jurisdiction exercised for the benefit of both parties. For the benefit of the defendant/respondent because the injunction discloses to him/her that he/she is probably proceeding without warrant of the law; for the benefit of the complainant by protecting him from injuries which if inflicted would be wholly destructive of his/her rights before they are judicially considered. See *Siteyia v Gitome & Others [1993] KLR 801*

The goal of temporary injunction is to maintain the status quo pending the outcome of the litigation. The status quo which will be preserved by a temporary injunction is the last actual, pre-dispute, peaceable, noncontested status which preceded the pending or forthcoming controversy to be resolved in the suit. This means that the injunction shall preserve or restore such relationship to a desirable state.

The jurisdictional and procedural principles governing interim injunctions or temporary injunctions must be sufficiently balanced and flexible to address the objectives of these remedies. The court's discretionary powers should only be exercised if the court is satisfied that there is status quo to be preserved for the benefit of the parties and no injustice would be suffered by the parties.

If the court believes that there is a serious issue to be tried, it will prospectively consider the parties' respective positions according to whether an injunction is granted or refused. In doing so, the court will gauge the hardship which would be caused to the applicant if he is refused relief and balance it against the hardship which would be caused to the respondent if

the injunction is granted. If neither party would be adequately compensated, the court would ascertain where the balance of justice lies.

The jurisdiction to grant a temporary injunction is an exercise of discretion and the discretionary powers are to be exercised judiciously as was noted in the case of *Yahaya Kariisa vs Attorney General & Another, S. C. C. A. No.7 of 1994 [1997] HCB 29.*

It should be noted that where there is a legal right either at law or in equity, the court has power to grant an injunction in protection of that right. Further to note, a party is entitled to apply for an injunction as soon as her legal right is invaded. *See Titus Tayebwa v Fred Bogere and Eric Mukasa Civil Appeal No.3 of 2009*.

In applications for a temporary injunction, the Applicant is required to show that there must be a prima facie case with a probability of success of the pending suit. The court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. *(See American Cyanamid Co v Ethicon Ltd [1975] ALL ER 504).*

A *prima facie* case with a probability of success is no more than that the Court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried as was noted in *Victor Construction Works Ltd v Uganda National Roads Authority HCMA NO. 601of 2010.*

The applicant is challenging the Stop and Restoration Order issued in respect of the land now owned by the applicant. The respondent contends that they exercised their statutory authority to preserve the environment and wetland in particular. The applicant is challenging the issuance of the said order for illegality irrationality and procedural impropriety. The court cannot make a determination at this stage since it is yet to interrogate facts and circumstances surrounding this application.

There are serious issues to be interrogated in the main application (Cause) and this court is satisfied that the case for the applicant is not frivolous or vexatious under the circumstances. The court should be given some reasonable time to determine the issues of contention without any of the parties being prejudiced.

The whole purpose of granting an injunction is to preserve the status quo as was noted in the case of *Humphrey Nzeyi vs Bank of Uganda and Attorney General Constitutional Application No.01 of 2013.* Honourable Justice Remmy Kasule noted that an order to maintain the status quo is intended to prevent any of the parties involved in a dispute from taking any action until the matter is resolved by court. It seeks to prevent harm or preserve the existing conditions so that a party's position is not prejudiced in the meantime until a resolution by court of the issues in dispute is reached. It is the last, actual, peaceable, uncontested status which preceded the pending controversy. The court should not preserve a contested status quo which is under challenge for illegality and especially under judicial review.

The applicant does not want the respondent to enforce and implement the stop and restoration order issued against him and the same may involve arrest and prosecution. On the other hand, the respondent is trying to ensure that the applicant does not continue to degrade the environment or the wetland. The court must balance the stakes of the parties in order to avoid either party being seriously prejudiced by the actions of the other.

This court has wide discretion at this stage to consider any factor which would have a bearing on the issue whether the injunction ought to be granted. It is for the court to determine the weight to be accorded to a particular factor weighed in balance and where they appear to be balanced the court ought to consider and strive to preserve the status quo.

Other factors that may be taken into account in determining the balance of convenience include the importance in upholding the law of the land or rule of law and the duty placed on the authority to enforce the law in public interest. The actions of the respondent must be rooted in the law and any divergence and abuse of power must be restrained as the court investigates the circumstances surrounding the Stop and Restoration Order issued against the applicant by the respondent.

This court in the exercise of its discretion ought to avoid any absurdity in application of the law since the damage the applicant will suffer if court rules in his favour will be greater and irreparable. It is a well settled preposition of the law that an interim injunction order can be granted only if the applicant will suffer irreparable injury or loss keeping in view the strength of the parties' case.

The courts when exercising power of judicial review have a duty of ensuring that the public body or officer has acted in accordance with the law or within the 'four corners' of the legislation or constitution and thus enforcing the rule of law. The court would be greatly inclined to granting interim remedies as it establishes the propriety of the decision in order not to render the application nugatory. Where an injunction is asked which will affect public interest for whose impairment, even temporarily, an undertaking as to damages cannot compensate, the court may in public interest withhold the relief until a final determination of the rights of the parties, though the postponement may be burdensome to the applicant.

The court's power to grant a temporary injunction is extraordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of temporary injunction being equitable remedy, it is in discretion of the court and such discretion must be exercised in favour of the applicant only if the court is satisfied that, unless the respondent is restrained by an order of injunction, irreparable loss or damage will be caused to the applicant. The court grants such relief *ex debitio justitiae*, i.e to meet the ends of justice. The court must keep in mind the principles of justice and fair play and should exercise its discretion only if the ends of justice require it. See *Section 64 of the Civil Procedure Act*.

In the result for the reasons stated herein above this application partly succeeds: *A temporary injunction doth issue restraining the respondent and/or any of its servants or agents or any person from enforcing and or implementing in anyway of the STOP ORDER and ENVIRONMENT RESTORATION ORDER issued by the respondent on the 17th day of November 2023 and 1st November 2023, on the Applicant's land comprised in Block 106 Plot 1543 Land at Nvunwa until when the main cause is determined.*

Secondly, *the Applicant is equally restrained from doing any act by himself or servants or agents which would degrade the wetland or environment on the land comprised in Block 106 Plot 1543 Land at Nvunwa during the pendency of this matter in court until when the main cause is determined.*

The costs shall be in the cause.

**I so Order**

*Ssekaana Musa Judge 17 th May 2024*