The Executive Director, National Environment Management Authority (NEMA) v Solid State Limited (Civil Appeal 15 of 2015) [2018] UGSC 93 (21 December 2018)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

### (CORAM: TUMWESIGYE, KISAAKYE, ARACH-AMOKO, OPIO-AWERI, $MWONDHA, JJ. S. C$ )

#### CIVIL APPEAL NO. 15 OF 2015

#### **BETWEEN**

# THE EXECUTIVE DIRECTOR, NATIONAL ENVIRONMENTAL **MANAGEMENT AUTHORITY (NEMA)**

**:::::::::::::::::::APPELLANT**

#### AND

### SOLID STATE LIMITED::::::::::::::::::::::::::::::::::::

[Appeal from the judgment and orders of the Court of Appeal, (Nshimye, Kasule, Tibatemwa-Ekirikubinza, J. J. A) dated 27th May, 2015, in Civil Appeal No.239 of 2013].

## **JUDGMENT OF HON. JUSTICE ARACH-AMOKO, JSC**

This is an appeal by the Executive Director of the National Environmental Management Authority (NEMA), hereinafter referred to as the "appellant". It is against the decision of the Court of Appeal dated 27th May, 2015, whereby the Court of Appeal upheld the decision of the High Court (Kabito J) in favour of the respondent who had been the applicant in the High Court, except the award of special damages. The respondent has also filed a cross-appeal

against the decision by the Court of Appeal setting aside the award $\overline{5}$ of special as well as the quantum of general damages.

### **Background**

The background to the briefly as follows:

The respondent, a limited liability company incorporated under the laws of Uganda had intentions of establishing the business of stone 10 quarrying at a place called Lubani Hill, at Butagaya Sub-county in Jinja District. The company applied for the requisite authorization from the National Environmental Management Authority, (NEMA). On the 16th July, 2012, the appellant, in his capacity as the Executive Director of NEMA, granted an Environmental Impact 15 Assessment (EIA) Certificate to the respondent company allowing it to establish a stone quarry at the said place. On the 14th September, however, the appellant cancelled the said Certificate on the ground that he had received complaints from members of the community in the project area that the project posed an 20 environmental and health hazard to them.

The respondent was aggrieved by that decision and action and challenged it by way of judicial review vide High Court Miscellaneous Cause No. 148 of 2012 on the ground that the company was not accorded a fair hearing and was thus contrary to 25 the rules of natural justice. Consequently, the respondent sought the following declarations and orders from the High Court:

$\overline{2}$

- 1. An order of certiorari quashing the cancellation of the $\mathsf{S}$ respondent's Certificate: - 2. A declaration that the appellant had breached the rules of natural justice and therefore the cancellation of the Certificate is a nullity in law, specifically: - $10$ - The rule to hear the other side (audi alteram $i)$ partem); - The rule that a matter should not be heard by the ii) same person twice. - 3. A declaration that the actions of the appellant of not granting a fair hearing to the respondent is contrary to 15 Article 28(1) of the Constitution and any decision taken thereafter that affected the validity of the license is null and void. - 4. A further declaration that the respondent is granted the following other remedies: - Shs. 2.5 billion for loss of business opportunity based $i)$ on contracts already secured and ready for execution with Namaubi Enterprises; - ii) Shs 1.2 billion loss of business opportunity on contract already secured with Dott Services Ltd;

$20$

$\overline{3}$

- Shs. 400 million expended on procurement of iii) equipment and general operationalization of the project. - iv) Shs 205 million paid for hire of equipment. - $v)$ General damages for loss of future business opportunity. - vi) Costs of the application

## vii) Interest thereon.

In the alternative, the respondent prayed for an order that in addition to the reliefs sought in paragraph above, the appellant refunds the following other monies: 15

> Shs. 1,170,000,000 expended on site acquisition. $i)$

#### Shs 11, 100,000 being the cost of processing the ii) Certificate.

The appellant denied the claims, contending that there was no statutory requirement for a hearing before cancelling an EIA 20 Certificate.

The learned trial judge heard the application and, in a lengthy and well reasoned Ruling dated 29th September, 2013, held that the cancellation of the respondent's EIA Certificate was unlawful. As a result, he made the following orders in favour of the respondent company:

$\overline{5}$

- "1. An order of certiorari be issued against the Respondent $\mathsf{S}$ (now appellant) to quash the cancellation of the Certificate Approval of Environmental Impact Assessment $of$ Certificate No. NEMA/EIA/4206 of 16th July, 2012. - 2. An order for the award of special damages of UGS 896,000,000 (eight hundred and ninety six million shillings) and US\$ 17,595 (seventeen thousand five hundred and ninety five US Dollars). - 3. An order for the award of general damages of UGS 400,000,000 (four hundred million). - 4. An order for the award of interest at 20% per annum on (2) 15 and (3). - 5. An order for the costs of the application to the applicant."

The appellant was dissatisfied with that decision and appealed to the Court of Appeal on the grounds that:

1) That the learned trial judge erred in law and in fact in 20 holding that the respondent was not accorded a fair hearing before the cancellation of the EIA Certificate.

In the alternative,

warrant such an order.

2) The learned trial judge erred in law and in fact by arbitrarily exercising his discretion to grant the prerogative order of certiorari when the circumstances of the case did not

$10$

- 3) The learned trial judge erred in law and in fact when he $\mathsf{S}$ wrongfully entertained a claim for damages and awarded the same in the unwarranted circumstances of the case before him. - 4) The learned trial judge erred in law and in fact in finding that the respondent was entitled to of UGS 896,000,000 (eight hundred and ninety six million shillings) and US\$ 17,595 (seventeen thousand five hundred and ninety five US Dollars as special damages when the same had not been properly pleaded. - 5) That having found that there was no evidence of special 15 arrangement between the respondent and Mr. **Isaac** Musumba; the learned trial judge erred in law and in fact in awarding a sum of shs 500,000,000 as the cost of the purchase of the rock. - 6) That the learned trial judge erred in law and in fact when he 20 awarded the sum of shs. 400,000,000 as general damages which sum was so high in the circumstances to constitute entirely erroneous estimate of damages to the $an$ respondent. - 7) That the learned trial judge erred in law and in fact when he 25 awarded an excessively high and unjustifiable interest rate. - 8) That the learned trial judge erred in law and in fact when he entertained and determined an application for judicial

#### review against the Executive Director NEMA who is a non- $\mathsf{S}$ existent legal entity.

The Court of Appeal dismissed the appeal against the order of certiorari, the general damages of 400,000,000 and the interest. The Court further awarded the respondent 70% of the taxed costs of the appeal in the Court of Appeal and the High Court and a Certificate of two counsel. The Court of Appeal ordered NEMA to pay since the appellant was acting in his official capacity when he cancelled the said EIA Certificate.

- Regarding the issue whether the suit against the Executive Director of NEMA was competent or not, the learned Justices answered it in 15 the affirmative and held that the application was properly instituted against the appellant. Consequently, they disallowed this ground of appeal. - The Court of Appeal, however, allowed the appeal against the order of special damages and set it aside. 20

The appellant was dissatisfied with the decision of the Court of Appeal and lodged the instant appeal to this Court based on the grounds:

1) That the Learned Justices of Appeal erred in law and in fact by upholding the lower Court's decision to entertain and 25 determine an application for judicial review against a wrong party, the Executive Director of NEMA who is a non-legal entity.

$7$

- 2) That the learned justices of Appeal erred in law and in fact $\overline{5}$ by concluding that there was no hearing at all and upholding the lower Court's finding that the Respondent was not accorded a fair hearing before the cancellation of the Impact Assessment Certificate, without **Environment** evaluating the evidence on record and determining whether the communications exchanged by and between the parties amounted to a hearing or not. - 3) That the Learned Justices of Appeal erred in law and in fact by upholding the lower Court's grant of the prerogative order of Certiorari which in the circumstances was unwarranted. - 4) That the Learned Justices of Appeal erred in law and in fact by upholding the lower Court's award of a monetary sum of Ug. Shs. $400,000,000/$ = as general damages on wrong principles and which sum was so high and excessive in the circumstances as to constitute an entirely erroneous estimate of damages in the matter. - 5) That the Learned Justices of Appeal erred in law and in fact by upholding the lower Court's award of an excessively high and unjustifiable interest rate of 20% awarded on the wrong principles.

The Appellant prayed that the appeal be allowed and the decision of the lower Court be reversed with orders that:

- a) The Executive Director of NEMA as a party be struck off. - b) The Order of Certiorari be reversed and or quashed. - c) The Award of general damages and interest of 20% be set aside; and - d) Costs of the appeal and Courts below be awarded to the appellant.

The respondent was also aggrieved by the decision of the Court of Appeal regarding the award of damages and cross - appealed on the grounds that:

1) The learned Justices of Appeal erred in law when they 15 set aside the award of Special Damages in the sum of UGX. 896,000,000/= (Eight Hundred and Ninety-six Million Uganda Shillings) and US\$ 17, 595.00(Seventeen Thousand Five Hundred and Ninety-Five United States Dollars) made by the trial judge. 20

> 2) The learned Justices of Appeal erred in law and in fact when they made an award of general damages which did not take into account loss of business and income occasioned to the cross appellant/respondent by the actions of the appellant.

The respondent prayed that the cross-appeal be allowed with orders that.

$\mathsf{S}$ - The Order of the Court of Appeal setting aside the $a)$ award of special damages be set aside and the award for special damages by the trial judge be upheld. - b) The respondent be awarded enhanced general damages taking into account loss of business and income occasioned to the respondent by the acts of the appellant. - The appellant pays the respondent's costs of this $\mathbf{c})$ appeal and the Courts below.

## **Representation:**

At the hearing the appellant was represented by Mr. Bruce 15 Kwarisima Kyerere, Principal State Attorney Phillip Mwaka and Ms. Eunice Asinguza a Legal Officer of NEMA. The respondent was represented by Mr. Isaac Mpanga. Both sides adopted the written submissions filed in Court. They argued the grounds of appeal and cross-appeal separately in the order in which they were framed. 20 However none of them addressed Court on ground 5 of the appeal. In the premises, it is safe to assume that it was abandoned by the appellant.

## **Submissions of Counsel:**

Ground 1: Whether a suit against the Executive Director NEMA 25 is competent.

$5$

In his submissions on this ground Mr. Mwaka faulted the learned $\mathsf{S}$ Justices of the Court of Appeal for upholding the decision of the High Court that the Executive Director NEMA was a proper party to the suit since under the law, only a legal entity established by law may sue or be sued. He pointed out that only a limited number of heads of Government institutions such as the Administrator 10 General, the Treasury officer of Accounts, the Public Trustee and Traditional and Cultural leaders may sue and be sued in their names because it is expressly provided for under the respective statues establishing those institutions. The Executive Director NEMA is not among them. 15

He submitted that there is lack of clarity as to whether a non-legal person can be sued or not since there are two conflicting lines of decisions from this Court because in the case of Commissioner General URA V Meera Investments Ltd SCCA No.22 of 2007 the Supreme Court upheld a case against the Commissioner General of 20 Uganda Revenue Authority, while in the case of Charles Harry Twagira Vs Attorney General & 2 Ors, SCCA No.4 of 2007, the Court held that such suits cannot be maintained. He prayed that the Court clarifies this point for the guidance of the lower Courts. Moanga

In answer to the submissions of Mr. Mwaka, Mr. Kyerere supported 25 the decision of the findings and decision of the Court of Appeal. He submitted that this ground was premised on the assertion that a suit cannot be competently instituted against the Executive Director of NEMA the Executive Director since a non-legal entity

incapable of suing or being sued. He submitted that the learned $\overline{5}$ Justices of the Court of Appeal in deciding this ground relied on the authority of Commissioner General URA vs. Meera Investment Ltd (supra) and held that the Executive Director as the chief executive officer of NEMA who is responsible for the day to day running and management of the Authority can similarly be sued. 10 This is because the relevant sections of the NEMA Act and URA Act are couched in the same language.

He submitted that the impugned acts for which the prerogative order of certiorari was sought are reserved for the Executive Director as per sections 12 and 13 of the National Environment Act. 15 Consequently, any action to give an Administrative review relief to the respondent had to be brought directly against the officer whom the law has specifically delegated those functions.

He argued that the claim in Administrative review is brought against the officer of a public corporation to quash a decision made 20 in respect of and in pursuance of his statutory authority. This is the import of the authority of The Commissioner General of URA vs. Meera Investment (supra) which is to the effect that an officer of a public body can be sued for statutory functions reserved for that office by law. He submitted that Supreme Court has not 25 departed from the decision in The Commissioner General of URA vs. Meera Investment, therefore, it is still good law.

He prayed that this Court should therefore uphold the decision of $\mathsf{S}$ the Court of Appeal on this ground.

## Ground 2: Whether the respondent was afforded a fair hearing before the cancellation of its EIA Certificate.

- Counsel for the appellant criticised for upholding the finding by the trial judge that the respondent was not afforded a fair hearing 10 before the cancellation of its EIA Certificate. He further faulted the learned Justices for failing to distinguish between the circumstances required for the right to a fair hearing under Article 28(1) and those under Article 42 of the Constitution and for giving a very narrow and restrictive meaning of what amounts to a "fair 15 - hearing" in law.

He submitted that a hearing under Article 28 of the Constitution is adjudicative and formal while a hearing under Article 42 of the Constitution is administrative and does not necessarily need to be a formal affair. He contended that an investigative body like NEMA is a master of its own procedure and need not adopt a formal judicial style of hearing. He cited the case of **R v Race Relations Board, Ex** parte Selvarajan 1 WLR (1975) 1686, in support of his submissions on this point.

He further explained that the appellant, having received complaints 25 concerning the location of the proposed project, ordered the respondent through a letter dated 13th August, 2012 to stop all preparations for quarrying activities. The appellant then carried out

an inspection to verify the complaints and found that the EIA report $\mathsf{S}$ submitted by the respondent together with the comments by the District local Government's Environmental Official contained falsehoods and were a gross misrepresentation of the facts on the ground. These included, among others, the fact that there were four schools within the area and the livelihoods together with the $10$ property of the surrounding communities stood to be adversely affected by the vibrations, flying stones, dust and noise emanating from the respondent's activities. The respondent then made a response to the allegations through a letter dated 3rd September, 2012. Since the response was unsatisfactory, the appellant 15 cancelled the Certificate.

Counsel emphasised that apart from the said letters, the appellant held several telephone conversations with the respondent as well and this fact was not denied by the respondent who only asserted that both parties never physically met.

He submitted that in the instant case, therefore, there was an exchange of both formal and informal communication between the parties that drew the issues in contention to the respondent's attention who subsequently responded to them. The appellant then acted upon the respondent's response to make a final decision to cancel the licence. In Counsel's view, these communications and interactions between the two parties gave the respondent a fair opportunity to be heard in the matter. According to counsel, this

amounted to a just and fair hearing within the meaning of Article $\mathsf{S}$ 42 of the Constitution.

Counsel for the respondent supported the decision of the learned Justices of the Court of Appeal. He submitted that there was only one form of fair hearing and that is the fair hearing specified in Article 28 of the Constitution. Anything short of that is no fair 10 hearing at all. According to him, Article 42 of the Constitution only requires an administrative body like the appellant to accord a fair hearing within the meaning of Article 28 to all persons affected by its decisions and in lieu of that, it further provides an avenue to persons so affected to apply to Court in respect of any 15 administrative decision in violation of Article 28 which is non derogable as provided under Article 44 of the Constitution. Counsel relied on the case of Ridge v Baldwin (1964) AC 40 in support of his argument.

He asserted that the decision in **R v Race Relations Board** (supra) 20 relied upon by the appellant only dealt with investigative bodies but not quasi-judicial bodies such as the appellant. According to counsel, the reason why an investigative body is not allowed to give the subject of its investigation a fair hearing is that the said subject will have a future opportunity to answer to the charges once 25 investigations are complete to give evidence to dispel the allegations against him. It is because of this distinction that the same body cannot be the investigator, prosecutor, and judge and where, like in the instant case, the same body performs all those functions, then

it cannot be said that a fair hearing was accorded to the $\mathsf{S}$ respondent. (See: Charles Twagira vs. Uganda, SC Criminal Application No. 3 of 2003).

He further submitted that in considering this ground, the number of correspondences between the parties did not matter as long as Article 28 of the Constitution was not satisfied by putting the 10 complaint to the respondent and according the respondent an opportunity to respond to it. Short of that, it cannot be said that there is a fair hearing and any decision reached thereafter is no decision at all.

Based on the foregoing arguments, counsel asserted that the 15 learned Justices rightly held that there was no hearing accorded to the respondent before the licence was cancelled and this was contrary to Article 28(1) and 42 which entitled the respondent to a fair, speedy and public hearing an independent and impartial tribunal and a right to be treated fairly before the decision to cancel $20$ its EIA Certificate was taken.

He prayed that the finding and decision of the Court of Appeal should be upheld by this Court.

## Ground 3: Whether the Order of Certiorari was warranted

Counsel for the appellant submitted that the granting of the order 25 of certiorari was unwarranted in the circumstances of this case. Firstly, he argued that much as the Court has the discretion to set aside or quash a decision of an administrative body, it may, in

public interest refuse to grant the order of certiorari even when it $\mathsf{S}$ has held the impugned decision to have been unlawfully made. This is because certiorari may not be the most effective remedy in the circumstances. He relied on the case of **Barabra & Ors v Minister** for labour and Youth Development and Others [1995-1998]2 EA 52 (CAT) and the Halsbury's laws of England 4th Ed 2001 $10$ **Volume 1(1)** in support of his submissions on this point.

Secondly, Counsel submitted that NEMA has the statutory duty to protect the environment and the public against activities that are adverse in the course of exploitation of natural resources. In this case, there were competing interests between the public and the individual and due to public policy; there was a more compelling need for the protection of the wider community. The right to be heard under Article 42 should have therefore been weighed against and or balanced with the constitutional command under Article 8A on national interest and common good. According to counsel, the order of certiorari would therefore operate against public policy in this particular case.

Thirdly, he submitted that from the evidence on record, it was evident that the respondent's activities would adversely affect the surroundings and the livelihood of the communities around the 25 quarry by disrupting the community's normal life and depriving the public of their right to a clean healthy environment.

Lastly on this ground, Counsel contended that simply because $\mathsf{S}$ there could have been a procedural irregularity or an unlawful act, this should not have been used to endanger the public by granting the order of certiorari. He contended further that the quarrying activities would adversely affect and cause damage to the surrounding communities unless the license is cancelled 10

Counsel for the respondent supported the decision of the Court of Appeal and contended that the failure by the appellant to accord the respondent a fair hearing rendered the decision a nullity. Consequently, the issuance of the order of certiorari by Court followed as a matter of course. He submitted that it is trite law that 15 a Court sitting in Judicial Review of an Administrative decision is not concerned with the quality or merit of the decision but with the process of making the decision and if that process is not in accordance with the law as found by the trial judge and upheld by the Court of Appeal, the same cannot and should not be left to 20 stand. Therefore, it was not for the Court to concern itself with the issue whether reversing the decision offends the national objectives and directive principles of state policy or not.

He further contended that whereas it is true that Court has discretion to set aside the decision of an administrative body, this 25 discretion should be exercised judiciously in accordance with the law. He insisted that in the instant case, the respondent was not accorded a fair hearing by the appellant before cancelling the EIA Certificate. Therefore, the appellant's decision was a nullity and the learned Justices of the Court of Appeal were justified in upholding $\mathsf{S}$ the said decision.

### Ground 4: General Damages

Learned counsel for the appellant submitted that the learned Justices of the Court of Appeal erred in law and in fact by upholding the award by the learned trial judge of the monetary sum of Shs. 400,000,000 as general damages on wrong principles and it was also so high and excessive in the circumstances as to constitute an entirely erroneous estimate of damages in the matter. He gave the following reasons for his submission:

- Firstly, Counsel contended that the award of damages is not the 15 norm in judicial review proceedings and may only be awarded where all conditions under Rule 8 of the Judicature (Judicial Review) Rules S. I No. 11 of 2009 have been complied with. He contended that even then, it is not a matter of simply mentioning or praying for damages but the applicant must satisfy the Court that 20 an alternative cause of action was available to him at the time of making the application and that the he could have been awarded damages. In this case, these conditions were not fulfilled by the applicant/respondent. - Secondly, Counsel contended that the evidence relied on to advance 25 the claim for damages was inadequate since they were merely photocopied documents and annexures to the respondent's affidavit purported to have been signed by third parties and contained - 19

- highly exaggerated financial projections whose authenticity or $\mathsf{S}$ admissibility was highly questionable. In the premises, the learned Justices rightly declined to rely on the said documents when they rejected the award of special damages since the documents could not be adequately verified in proceedings of this nature. He relied on sections 63 and 61 of the Evidence Act, the cases of Kakooza 10 John Baptist v Electoral Commission& Anor. Election Petition Appeal No.11 of 2007 and Rossage v Rossage [1960] 1 ALLER **599** in support of this submission on this point. - Thirdly, Counsel submitted that the lower Court had relied on the said documents to assess the purported loss or inconvenience 15 suffered by the respondent. The Court's opinion was therefore based on unverified claims in the respondent's affidavit and annexures which ought to be rejected as inadmissible or unreliable as a basis of assessment of damages in the matter. In addition, he argued that the affidavit supporting the respondent's claim was at 20 variance with what was indicated in the application submitted to NEMA by the respondent seeking to acquire the EIA Certificate.

Counsel invited this Court to set aside the award of shs. 400,000,000 or in the alternative and without prejudice to the foregoing submission, to substitute the said award with a nominal sum.

In his reply, Counsel for the respondent disagreed with the above submissions and contended that the Court is imbued with the

discretionary powers to grant remedies to parties to a dispute $\mathsf{S}$ before it under Section 33 of the Judicature Act Cap 13 read together with Rule 8 of the Judicature (Judicial Review) Rules S. I No. 11 of 2009, which provides for the award of damages if the prayer for damages has been included in the Notice of Motion and evidence has been adduced to the satisfaction of Court.

He submitted that in the instant case, the respondent had prayed for damages in his application and the affidavit in support of the application sworn by its Director Mr. Isaac Musumba contained the evidence of the injury suffered. He was cross- examined on his affidavit and the learned trial judge was satisfied that in this case, 15 the award of damages was justified in order to compensate the respondent for the loss or injury it had suffered. The learned Justices of the Court of Appeal were therefore right and justified in upholding the award of damages since the objective of the award of damages is to put the injured person back to the position he or she 20 was before the injury as was held in the case of **Bullingha vs.** Hughs [1949] 1 K. B 643.

#### **Ground 5: Interest**

The appellant's complaint in ground 5 is that the interest of 20% per annum on general damages is so high and excessive in the 25 circumstances as to constitute an entirely erroneous estimate of damages in the matter. As stated earlier in this judgment, none of the counsel representing the parties in this appeal made any

submissions on this ground. The presumption is therefore, that it $\mathsf{S}$ was abandoned.

## Consideration of Grounds of Appeal by Court

The duty of a first appellate Court is to carefully and exhaustively re-evaluate the evidence as a whole and to make its own decision on the facts. In making its decision, the Court should bear in mind that it has not had the opportunity of seeing or hearing the witnesses as the trial judge had, especially when the demeanour of the witnesses is key to the findings made. See: Kifamunte vs. Uganda (1999) 2. E. A 127 and Bogere Moses vs Uganda Cr Appeal no. 1 of 1997 [2010] ULR 138.]

Regarding the duty of this Court as a second appellate Court, the Court went on to observe in the **Kifamunte** case that:

"It does not seem to us, except in the clearest of cases, that we are required to re-evaluate the evidence like the first appellate Court save in Constitutional cases. On a second appeal, it is sufficient to decide whether the first appellate Court, in approaching its task, applied or failed to apply such principles. See Panda vs. R. (supra) Kairu vs. Uganda (1978) HCB 123."

I shall proceed to determine the grounds of appeal and cross-appeal 25 with these principles in mind.

#### Ground 1: Whether a suit against the Executive Director NEMA $\mathsf{S}$ is competent

The same issue was raised before the Court of Appeal under ground number 8 and the Learned Justices of the Court of Appeal determined it as follows:

"Finally, on whether it was competent for the respondent to sue the Executive Director of NEMA when he is not a corporate entity, in our view, it would be superfluous to imagine that the decision to cancel the Certificate of the respondent would be taken without consultation and approval of the Chief Executive. We note that sections 12 and 13 of the National Environmental Act are not very different from Sections 9 and 11 of the Uganda Revenue duties the Authority Act. The and functions Commissioner General of Uganda Revenue Authority and the Chief Executive of NEMA have much resemblance. Accordingly we find no reason to fault the judge for following the Supreme Court decision in Commissioner General of Uganda Revenue Authority $v$ s **Meera** Investments (supra) where a similar issue was ruled upon by the Supreme Court. We accept the submission by counsel for the respondent that the application was properly instituted against the Executive Director $f$ NEMA. The ground of the appeal relating to this aspect thus fails".

In concluding their judgment, the Court of Appeal ordered as 5 follows:

> "For the avoidance of doubt, since the Executive Director was sued in his official capacity, it follows therefore that the general damages of Shs. 400,000,000 (four hundred million shillings), the interest thereof awarded, and the cost, shall be paid by the National Environment Authority on whose behalf he was acting."

I have carefully considered the submissions and the authorities cited on this point. I must set the record straight from the outset. It is not true that there is confusion as far as the capacity to sue and 15 be sued is concerned as alleged by Mr Mwaka. It is settled law that a non-legal entity lacks the capacity to sue and be sued in its name. It is also not in dispute that the appellant is not a legal entity. The legal entity is NEMA, which is a body corporate under the NEMA Act. My perusal of the judgment of the learned Justices 20 of the Court of Appeal does not reveal anywhere that the Court of Appeal indicated that a non-entity can sue and be sued.

The excerpt from the judgment of the Court of Appeal quoted above stated very clearly and concisely that judicial review proceedings can be instituted against the Executive Director of NEMA in his official capacity since he is responsible for the day to day management of the Authority. In my opinion, the relevant sections of the NEMA Act are sections 11 and 12. Section 11 provides that there shall be an executive director appointed by the Minister on

the recommendation of the board with the approval of the policy $\mathsf{S}$ committee. Section 12 provides for the functions of the executive director. It reads as follows:

> "12. Functions of the executive director and the deputy executive director.

(1) The executive director shall be the chief executive of the authority and shall be responsible for the day-to-day operations of the authority.

(2) Subject to this Act and the general supervision and control of the board, the executive director shall be responsible for the management of the funds, property and business of the authority and for the administration, organisation and control of the staff of the authority.

(3) The executive director shall, from time to time, keep the board and the policy committee informed of the progress and activities of the authority.

(4) The deputy executive director shall assist the executive director in the performance of his or her functions.

(5) The executive director and the deputy executive director shall be responsible to the board."

The relevant section of the URA Act is section 9 which reads as follows:

"9. Commissioner General.

(1) The Minister shall appoint a Commissioner General of the authority on the recommendation of the board and on the terms and conditions to be specified in the instrument of appointment.

(2) The Commissioner General shall be the chief executive of the authority and shall be responsible for the day-today operations of the authority, the management of funds, property and business of the authority and for the administration, organisation and control of the other officers and staff of the authority.

(3) The Commissioner General shall devote his or her full time to the duties of his or her office and shall not engage in business, profession, occupation anv or paid employment elsewhere.

(4) The Minister may, after consultation with the board, terminate the appointment of the Commissioner General $for-$

(a) misbehaviour:

(b) the Commissioner General's inability to perform the functions of 25

his or her office; or

$5$

- I have compared the provisions of sections 12 of the NEMA Act with $\mathsf{S}$ section 9 of the URA Act, and find them similar indeed. In both cases, the both officials are responsible for the day to day management of the authorities they head. - Further to this, I find that Kanyeihamba, JSC, as he then was, gave a clear guideline in the Meera case in proceedings of this nature 10 where he stated the capacity for an official to sue and be sued depends on the Court's interpretation of the various Acts of Parliament which govern a particular institution. In the Meera case, the laws that were cited by counsel which the Court interpreted were the Uganda Revenue Authority Act, the Income 15 Tax Act and the Value Added Tax Act. Justice Kanyeihamba held, after examining the provisions of the said statutes, that:

# "It is thus abundantly clear that the Commissioner General is a competent party to a suit under these Acts."

The decision of this Court in Meera is still good law on this point. 20 The Learned Justices of the Court of Appeal were thus bound to follow it.

I also do not find any similarity between the position of the executive director NEMA and the examples given by Mr. Mwaka, namely, the Administrator General, The Treasury Officer of 25 Accounts, Traditional Cultural Leaders and the Public Trustee since they have specific provisions that provide that they can sue and be sued. The examples are thus irrelevant to the case of the appellant. - $\mathsf{S}$ Besides, it is common ground that judicial review proceedings are not ordinary suits. An application for judicial review is a specialised procedure. The respondents are usually the public bodies or officials whose decisions or actions are the subject of judicial review. In my view, therefore, impleading the officer whose decision - is sought to be quashed as respondent does not render an 10 application incompetent at all, although the proper party to the proceedings should ideally be the responsible authority on whose behalf the official is acting, which is NEMA, in this case. Examples include Kaggwa Andrew and 5 others vs. The Honourable - Minister of Internal Affairs, HCT-OO-CV-MC-0105 of 2002 15 (unreported). In that case, the applicants successfully challenged the decision of the Minister of Internal Affairs which upheld the revocation of the Certificate of Registration of an NGO called Caring for Orphans (COWE) by the NGO Board by way of judicial review. - The decision was quashed and the NGO Board was ordered to re-20 instate the registration of COWE as an NGO.

For this reason, this ground of Appeal fails.

## Ground 2: fair hearing.

The complaint in this ground is that the learned Justices of the Court of Appeal concluded that the respondent was not accorded a 25 fair hearing before the cancellation of the EIA Certificate without evaluating the evidence on record and determining whether the communications exchanged by and between the parties amounted to a hearing or not. The contention by learned counsel for the

- appellant is that, had the learned Justices of the Court of Appeal $\overline{5}$ subjected the evidence before the learned High Court Judge to a fresh scrutiny as required of them by Rule 30 of the Court of Appeal Rules, they would have arrived at a different conclusion. They therefore erred in law. Consequently, Counsel invited this Court to - 10

re-evaluate the evidence and overrule the conclusion of the Court of Appeal on this ground.

Learned counsel for the respondent supported the findings of the learned Justices of the Court of Appeal, contending that they were arrived at after an exhaustive re-evaluation of the evidence before the Court. He prayed that this Court upholds the findings of the Court of Appeal and disallows this ground of appeal.

The above arguments of counsel raise the issue of the role of a second appellate Court. This is not a new point. It is an issue that has had judicial consideration before. In Kifamunte (supra) this Court said:

"On a second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial Court provided that there was evidence to support those findings though it may think it possible or even probable that it would not have itself come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact this being a question of law."

In dealing with this issue the learned Justices of the Court of $\mathsf{S}$ Appeal held as follows:

> "In this case, there was no hearing at all afforded to the respondent before the licence was cancelled. This was contrary to Article 28(1) and 42 of the Constitution. Article 28(1) entitled the respondent to a fair, speedy and public hearing before an independent and impartial tribunal established by law before a decision to cancel the licence was taken by the appellant. Article 42 put an obligation upon the appellant to treat the respondent justly and fairly before the decision to cancel the licence was taken. Courts in judicial review applications are bound to look into "How the decision was reached" and not into the merits of the case or complaint from which the application for judicial review is arising from."

The question then is, whether the learned Justices of the Court of 20 Appeal reached that conclusion without re-evaluating the evidence as a first appellate Court as alleged by the appellant's counsel.

On a careful perusal of the judgment, it does not indicate that the learned Justices of the Court of Appeal exhaustively reappraised the evidence, though they reached the right conclusion. They set 25 out the background of the appeal from the time the respondent applied for the EIA Certificate to the time of its cancellation. They found that the respondent was granted a Certificate to operate a quarry after fulfilling all the requirements, including obtaining an

- EIA approval Certificate on the 16th July 2012. Thereafter, the $\mathsf{S}$ appellant wrote a letter to the respondent informing him of the complaint relating to the location of the quarrying activities and relied on the general condition (viii) of the EIA Certificate which was to the effect that the respondent would: - "(viii) in accordance to section 22(4) of the National 10 Environment Act cap 53, be duty bound to ensure that any other undesirable environmental impacts that may arise due to the implementation of this project, but were not contemplated by the time of undertaking this environmental impact assessment, are mitigated." 15

The learned Justices noted that the appellant was required under the above condition to do everything possible to mitigate and bear of arresting any unforeseeable or undesirable the costs environmental impacts that may arise in future.

The learned Justices found that the complaints referred by the 20 appellant in his letter were followed by an inspection team of NEMA which found that the District Environmental Officer (DEO) had not disclosed certain facts while making its findings and comments to NEMA at the initial stages. The appellant thereafter proceeded to suspend the licence. 25

The appellant's contention before the Court of Appeal was that in the working arrangements between them, there was neither a statutory requirement for giving a hearing nor any requirement of

- observing the principles of natural justice before the appellant $\mathsf{S}$ could cancel the EIA Certificate. The appellant further contended that there was no legal requirement on his part to summon and explain to the respondent the allegations against the appellant regarding its operations before cancelling the said Certificate. - In their judgment, the learned Justices of the Court of Appeal 10 quoted the averment by Mr. Musumba where he deponed in his affidavit in Reply dated $17th$ December, 2012:

"That regarding averments in paragraph 33, had I been given the opportunity to be heard, I would have proven to the respondent that it was not in the applicant's business plan to crush the stones at the site, therefore no dust would be generated and the communities around would not in any way be affected as averred by the respondent (now applicant)."

The learned Justices were alive to the well settled principle that 20 Courts do not usually interfere with decisions of statutory bodies like the appellant unless the process is alleged to have been irregular or contrary to the established procedures and rules of natural justice. The Court stated that the application of the rules of natural justice is implied in any quasi-judicial process and 25 compliance with the same is fundamental to a decision from that process. The Court concluded that a decision taken in non-

observance of the Rules of natural justice is **void ab initio. See:** $\mathsf{S}$ Seviri vs Uganda Land Commission. [1979] HCB.

Having carefully perused the record of appeal, I find that the learned Justices of the Court of Appeal reached the correct decision although they did not appear to have subjected all the evidence on record to an exhaustive scrutiny before reaching their decision. I have accordingly re-evaluated the evidence.

I find the evidence of Mr. Musumba which was uncontroverted by the Appellant is that, soon after obtaining the Certificate approval of the EIA on the 16th May, 2012, he travelled to Saudi Arabia to purchase equipment and inputs for the quarry. On return to 15 Uganda, he found that he had been served with a letter dated $13th$ August, 2012, from the Executive Director of NEMA, asking him to stop further activity on the rock immediately, until some complaints had been investigated. The reason given by the Executive Director in the said letter was that it was: 20

## "Due to severe and strong complaints relating to the locality of the quarrying activities and inconformity with General Condition (viii)."

Mr. Musumba further deponed in his affidavit that he waited in vain for an invitation, summons or letter explaining the allegations 25 by NEMA and giving him an opportunity to be heard before cancelling the respondent's EIA Certificate. According to the affidavit in reply of Dr. Tom Okia Okurut, NEMA had:

"13. within a week of approval of the project of the respondent received numerous complaints from the communities living around and within the vicinity of the project regarding the unsuitability of the project and the adverse environmental defects they were likely to suffer if the project was allowed to continue. A letter from the members of the community from the area is attached as Annexture R4."

## DR. Okurut further deponed that:

"14. That as a result of the complaints mentioned in paragraph 13 herein, NEMA staff conducted a fact finding inspection of the project to verify the complaints from the communities on the $11$ th September, 2012 during which it was found that the EIA report submitted by the applicant to NEMA for consideration and against which $an$ approval was subsequently issued contained falsehoods and omitted vital and critical information that would have helped the viewers and the respondent arrive at a more rational, objective and informed decision. The Information that was deliberately left out includes:

$(i)$ The fact that Lubani Trading Centre is within 200- $500$ m of the Stone Quarry and the trading centre is heavily populated and has many residences.

$5$

- The existence of Lubani Primary School and a $(ii)$ church within 200-500 m of the stone quarry - (iii) The existence of Lubani Secondary school within 400m of the stone quarry - The existence of a number of homesteads within $(iv)$ 100m of the stone quarry - The existence of Lubani Imam Hassan Primary $(v)$ School within 300-400m of the stone quarry - The existence of a mosque and dormitory for pupils (vi) within 200-300m of the stone quarry - (vii) The existence of sugar cane and mango plantations within 200-300m of the stone quarry

(viii) The existence of Hillside Secondary School.

## The inspection report is attached hereto as Annexure **RB.**"

It is not disputed that the appellant did not share with the 20 "several information regarding the who the Respondent complainants" were or the nature of their complaint in Annexure "RA". The appellant did not also share with the Respondent the findings of the post EIA inspection which he said was conducted by NEMA staff in Annexure RB". The only evidence on record is that of 25 correspondences and telephone contacts. This in my view, did not

$\mathsf{S}$

amount to a fair hearing since the Respondent had no opportunity $\mathsf{S}$ to verify the said claims and give its side of the story. This finding is based on the affidavit of Mr. Musumba where he had deponed that:

> "7. That a liaison Committee known as the "Lubani Ouarry Liaison Committee" whose objective was to act as a bridge between the company and the local Community was set up with elected membership of 31 locals."

The liaison Committee had:

"8... elected Mr. Munyirwa Frederick the proprietor of Lubani Hill Side Secondary School as its chairman and the LC1 Chairman for Lubani Central and Lubani West were also elected as members to the said Lubani Quarry."

It is thus clear to me that before cancelling the respondent's EIA Certificate, it was incumbent upon the appellant to inform the said company in details about the nature of the complaint against their project and to summon its representatives for a face to face meeting $20$ to defend the project and give reasons why the EIA Certificate in question should not be cancelled. This was crucial, in light of the very serious allegations labelled against the respondent in Annexures "RA" and "RB" above and magnitude of the investment that the respondent had set itself up to carry out in the area. The 25 failure to do so was contrary to the rules of natural justice and such a decision is a nullity under the law.

As Lord Denning observed in Kanda vs. Government of Malay $\mathsf{S}$ (1962) AC 322:

> "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case against him. He must know what evidence was given and what statements have been made affecting him and then he must be given a fair opportunity to correct or interdict them."

It appears settled that in cases of this nature, the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting 15 and the subject matter that is being dealt with, among others. One essential is that the person concerned should have a reasonable opportunity of presenting his case. (See: Amooti Godfrey Nyakaana v NEMA and 6 others Supreme Court Constitutional Appeal No. 05 of 2011.) 20

For these reasons I find no fault with the decision of the learned Justices of the Court of Appeal and I accordingly uphold it.

This ground also fails.

# Ground 3: Certiorari

This was ground 1 of appeal before the Court of Appeal. In dealing 25 with this ground, the Learned Justices of Appeal stated the following:

"In this case... it appears the appellant's case is premised on the assertion that the grant of certiorari was against public interest and interfered with the greater interest of third parties, namely, the community around the quarry site. This in our considered view is no excuse for the appellant not observing Articles 28(1) and 42 of the Constitution and not applying the Rules of Natural Justice when dealing with the Respondent. Thus the learned trial judge was justified in awarding the remedy of certiorari quashing the cancellation of the licence. Grounds one and two of the appeal fail."

The determination of this ground raises the question as to when the issuance of the order of certiorari is appropriate. As the Court of Appeal Justices rightly stated in the judgment on this issue, Courts do not usually interfere with the decisions of statutory bodies like the Appellant unless the process is proved to have been irregular or 20 contrary to the established procedures and rules of natural justice. The application of the rules of natural justice is implied in any quasi judicial process and compliance with the same is fundamental in any decision from that process. A decision taken in non observance of the Rules of Natural Justice is void ab initio. $25$

(See: Seviri v Uganda Land Commission HCB [1979].

Having found that the process by which the Certificate of the Respondent was cancelled violated its rights to a fair hearing as required by Article 28(1) of the Constitution and having held that

$\mathsf{S}$

- the Appellant was obliged under Article 42 of the Constitution to $\mathsf{S}$ treat the Respondent fairly before a decision to cancel his Certificate was taken, I hold the strong view that the Court of Appeal was right to uphold the decision of the learned trial judge that the order of certiorari was the most appropriate remedy in the circumstances of this case to quash a decision that was taken in 10 blatant contravention of the rules of natural justice. Article 44 of the Constitution provides that the right to a fair hearing is an absolute right which cannot be derogated from. (See: Hon. Hanifa Kawooya vs. Attorney General & Another, [2011] ULR 247). - In the premises, this ground also fails. 15

#### **Ground 4: General damages**

The complaint underground four of appeal is that the Shs 400,000,000 awarded to the respondent as general damages award was not only made on wrong principles but it was high and excessive as well.

Learned counsel for the appellant contended in the trial Court and later on the Court of Appeal that the award of general damages was not the norm in judicial review proceedings. He further argued that, to form the unfortunate opinion that led them to uphold the trial judge's award of the sum of shs. 400,000,000 in general damages, the Court of Appeal had relied on unverifiable information and a host of unverified photocopied documents including agreements and projections of earnings, annexed by the respondent to

supporting the affidavits to prove its claim. Citing the case of $\mathsf{S}$ Charles Twagira vs Attorney General and 2 Others, (Supreme Court Civil Appeal No. 4 of 2007), Counsel submitted that claims for damages based solely on affidavit evidence and especially in applications of this nature have always been found problematic by our Courts. He invited this Court to set it aside for lack of proof.

$\overline{25}$

In his reply, Counsel for the respondent supported the award and argued that it was not only based on sound principles but was reasonable in the circumstances of the case.

Before resolving this ground, I need to emphasise that the assessment of damages is a difficult task and yet the Court is 15 required to give a reasonable award which is neither extravagant nor oppressive. While the Judge is guided by such factors as previous awards in similar cases and the principles developed by Courts over the years, ultimately, what is a reasonable award is an exercise of discretion by the trial judge and will depend on the 20 peculiar facts of each case. As such, the discretion must be exercised judiciously on the basis of the material before Court.

That is why the law on this point is now well settled, namely, that an appellate Court will not interfere with the award of damages by the trial Court unless the trial Court has acted on a wrong principle of law or that the amount is so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is

## entitled. (See: Robert Coussens v Attorney General, Supreme $\mathsf{S}$ Court Civil Appeal No. 8 of 99 (unreported).

Regarding the merits, I wish to state from the outset that the High Court has power to award damages in judicial review proceedings as clearly provided for under Section 33 of the Judicature Act read together with Rule 8 of the Judicial Review Rules. Section 33 of the Judicature Act reads:

# "33. General Provisions as to remedies

The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or a matter are entitled to ..."

Rule 8 of the Judicature (Judicial Review) Rules S. I No. 11 of 2009 under which the matter was instituted before the High Court provides as follows:

# "8 Claim for damages.

- (1) On an application for judicial review the Court may, subject to sub rule (2), award damages to the applicant, if- - (a) he or she has included in the motion in support of his or her application a claim for damages arising from any matter to which the application relates; and

- (b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his or her application, he or she could have been awarded damages. - (2) Rules 1 to 5 of the Civil Procedure Rules shall be applied to a statement relating to a claim for damages as they apply to a pleading."

The issue for determination is therefore, whether the Respondent satisfied the conditions for the award of general damages under the above Rule. And if so, whether the award was based on wrong principles and was excessive as alleged by the respondent.

I have carefully examined the pleadings and I find that the respondent complied with the requirement of Rule 8 of the Judicial Review Rules above because the prayer for general damages was included under paragraph 4) (v) of the notice of motion in the following words:

" 4) A further declaration that the applicant is granted the following other remedies:

(v) General damages for loss of future business."

Secondly, I am satisfied that the claim for general damages arose from the matter to which the application relates, that is, the 25 wrongful cancellation of the respondent's Certificate.

Thirdly, it is clear that the matter out of which the application arose $\mathsf{S}$ is such that if the claim had been made in an action begun by the respondent at the time of making his application, he could have been awarded damages. As pointed out by the learned Justices of the Court of Appeal, there was actually an alternative and even more appropriate course of action available to the respondent, 10 namely, an ordinary suit for wrongful cancellation of the said Certificate of EIA.

Which brings me to the issue concerning the principles on which the award was based. I find that the learned Justices of the Court of Appeal correctly stated the principles in their judgment in the 15 following words:

> "Damages are within the discretion of Court and just like the respondent pleaded in its Notice of Motion and supporting affidavit, it showed that it lost as a result of the cancellation of the Certificate. In the case of Bullingha vs Hughs [1949] 1 KB 643, it was held that the objective of damages is to put the injured person back to the position where he or she was before the injury.

Damages are compensatory for loss or injury suffered. General damages are awardable at large and after assessment by Court. They are intended to offer some satisfaction to the injured party. They in some respects focus on the conduct of the party causing the injury and

# loss. See Uganda Revenue Authority vs. Wanume David Kitamirike Court of Appeal Civil Appeal No. 43 of 2010."

Based on the above principle, the learned Justices proceeded to deal with the award as follows:

"We have subjected the evidence adduced on damages to fresh scrutiny and we have reached our own conclusion. The respondent was expected to make profits from the business of rock blasting and crushing. It had already started executing agreements with potential customers. Money was borrowed and spent substantially in the project. Since 13.08.2012, to date, the respondent has not been able to do anything concerning the project due to the unilateral and abrupt conduct of the appellant. The respondent has thus suffered greatly from the liability and other obligations undertaken on the basis that the project was viable and was to be operational there and then. The learned trial judge considered the magnitude of the project and the projected income the respondent would have earned if he was not interrupted. The conduct of the appellant was arbitrary, callous and inconsiderate. We therefore, have not been persuaded that the award of Shs 400,000,000/- was on the higher side given the stated consideration."

(the underlining was added for emphasis)

$\mathsf{S}$

- Upon re-evaluation of the evidence on record, I find that the above $\mathsf{S}$ conclusion by the learned Justices of the Court of Appeal is not backed by empirical evidence because of the nature of the procedure used to make the claim by the respondent. Most specifically, the evidence on the money the respondent had purportedly borrowed and had spent on the project the money, the 10 expected profits that the respondent was expected to make from the business of rock blasting; the agreements that the respondent had purportedly executed with potential customers; the magnitude of the project and projected income that the respondent would have earned from the project. All these documents were unverified. Such 15 evidence could not in the premises have afforded the trial judge the basis for a fair assessment of the damages claimed. In other words, they were speculative and subject to verification. - Further, I find that the conclusion by the learned Justices was actually contradictory to their own findings. The Court of Appeal 20 found that the trial judge had formed his opinion on the claim for the loss and inconvenience allegedly suffered by the respondent on the basis of unverified documents and photocopies which had issues of authenticity and admissibility. The Court of Appeal accordingly rejected that evidence in respect of the claim for special 25 damages. In the premises, the Court of Appeal could not rely on the same evidence to support a claim for general damages for loss of income. Furthermore, it is on record that the magnitude of the project as 5 stated in the supporting affidavit of Mr. Musumba was at variance with what was included in the application that the respondent submitted to NEMA for the EIA Certificate. In addition to that, that there is also a possibility that the project could have proved unviable and instead made losses instead of profits. $10$

Most importantly, the basis on which the learned trial judge arrived at the sum of shs. 400,000,000 which the Court of Appeal upheld is not clear. According to the record, the learned trial judge, after considering the rest of the reliefs sought by the respondent, simply went ahead to order that:

# "The Court grants the general damages for loss of future business opportunity to the tune of shs.400, 000,000."

Being an exercise of discretion, the learned judge was duty bound to explain the basis of his award. Such an award cannot stand.

Nonetheless, I agree with the learned Justices of the Court of 20 Appeal that the respondent's plans for setting up a business was brought to an abrupt halt by the unlawful cancelation of the EIA Certificate by the appellant and the respondent did suffer some loss of future business opportunities as a result thereof. The respondent is consequently entitled to the award of general damages as a direct 25 and natural consequence of the appellant's unlawful act. However, I am of the view that the award of shs. $400,000,000/$ = was in the premises on the higher side to justify the interference by this Court.

I accordingly set aside the award of shs 400 million and substitute $\overline{5}$ it with an award of Shs. 200 million (Two hundred million shillings) for loss of future business opportunity.

This ground therefore partly succeeds for that reason.

#### **Ground 5: Interest**

- Although both parties never addressed this Court on this ground, I 10 find it very important and crucial to the appeal and a genuine complaint. Interest on general damages is normally awarded at Court rate which is around 6% to 8% per annum from the date of judgment till payment in full. The interest of 20% per annum on general damages is not only high and excessive in the premises, but 15 - it is erroneous as well since the Court of Appeal applied the commercial rate. (See: Hirji vs. Modesta [1967] EA 724). I have accordingly decided to interfere and reduce it to 6% per annum from the date of the High Court judgment till payment in full. - This ground succeeds for this reason. 20

# The Cross Appeal:

# Submissions of counsel on the cross appeal:

#### Ground 1: Special damages

The respondent's contention is mainly with regard to annexure "K". Counsel submitted that the record of proceedings had omitted 25 part of annexure "K" which the trial judge had considered in

awarding special damages. He argued that the record had also $\mathsf{S}$ omitted the agreement between the Respondent and one Tebandeke (supplier) in respect of hire of equipment as well as the delivery note. He submitted that the only document on record was the receipt of payment of shs. $205,000,000/$ = to the supplier. He submitted that the respondent has now filed a supplementary 10 record containing the said documents.

In that regard, Counsel submitted that although the learned Justices had set aside the award of special damages on the ground that the order of certiorari had been upheld, they did not take into account monies paid to suppliers of equipment evidenced by 15 annexure "K". According to counsel, the Justices should have considered the loss incurred under the contract as evidenced by **annexure "K"** and adequately compensated the respondent for the injury suffered.

Counsel for the appellant opposed the cross-appeal and contended 20 that the respondent never challenged the authenticity of the record of proceedings before the Court of Appeal. He argued that the said annexures were never part of the record at trial at all. Moreover Annexure "K" was only a receipt of payment dated 20th July, 2012 which is even not signed by the alleged supplier and nor the 25 agreement. Counsel reiterated his submissions on ground four and submitted that the respondent has not strictly proved his claim for special damages as required by the law and that the documents are of no evidential value and should be ignored by Court.

#### Ground 2: General Damages $\mathsf{S}$

In the alternative but without prejudice to the above, Counsel for the respondent/cross appellant submitted that in the event that the decision of the learned Justices in respect of special damages is upheld, then general damages should be enhanced to take care of the financial loss suffered by the respondent since the award was made in addition to the special damages at the trial Court.

In his reply, counsel for the appellant opposed the cross appeal and contended that this was a new issue raised for the first time on appeal. It cannot be raised at this point in this Court.

The appellant prayed that the cross appeal should be struck off 15 with costs.

# Consideration of the cross appeal by Court

There are two grounds of the cross appeal and I shall deal with both of them together:

The first ground complains about special damages. The respondent 20 criticised the learned Justices of the Court of Appeal for setting aside the award of special damages made by the learned trial judge.

The second ground concerned general damages. The respondent faulted the learned Justices of the Court of Appeal for making an award of general damages which did not take into account loss of business and income occasioned to it.

- After careful consideration of the above submissions, my $\mathsf{S}$ considered view is that the prayers in the cross appeal requesting this Court to admit **Annexure "K"** is basically an effort to smuggle additional evidence before this Court, which is not permitted by the Rules of this Court. Most importantly, I agree with the learned Justices of the Court of Appeal that the respondent did not only fail 10 to specifically plead the alleged special damages but also failed to strictly prove them as required by law. I further agree with the very detailed and sound reasons given by the learned Justices for rejecting the award of special damages. The addition of Annexure "K" is thus of no use to the Respondent's claim. In the 15 circumstances, I am not persuaded to interfere with the findings and the decisions of the Court of Appeal on the issue of special damages. The same reasons and conclusion apply to general damages. - I wish to state, in addition to the above, that the Respondent 20 should have actually filed an ordinary suit in a claim of this nature and magnitude because the procedure under judicial review is somewhat restrictive in that it deals mainly with the process rather than the merits of a claim and therefore makes it extremely difficult to strictly prove special damages in particular, as has been clearly 25 demonstrated by the instant case. It was therefore incumbent upon counsel to always weigh very carefully the consequences in each case, before opting to file a matter by way judicial review, particularly where he intends to claim for special damages.

Both grounds of the cross appeal fail for this reason. $5$

In the result I allow the appeal in part, set aside the orders of the Court of Appeal with respect to general damages and order that;

- 1. The Appellant pays the respondent Shs. $200,000,000/$ = as general damages for loss of future business opportunity. - 2. The appellant shall pay interest on (1) above at 6% per annum from the date of the High Court judgment till payment in full. - 3. The appellant shall pay 70% of the costs of the appeal in this Court and the Courts below. - 4. The payment in $(1)$ , $(2)$ , and $(3)$ shall be made by NEMA. - 5. The cross-appeal is dismissed with costs to the Appellant.

Dated at Kampala this 21st December 2018

M. S. ARACH AMOKO **JUSTICE OF THE SUPREME COURT**

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

TUMWESIGYE, KISAAKYE, ARACH-AMOKO, OPIO-AWERI, (CORAM: **MWONDHA, JJ. SC**

#### CIVIL APPEAL NO: 15 OF 2015

#### **BETWEEN**

THE EXECUTIVE DIRECTOR NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY::::::::::::::::::::::::::::::::::::

AND

SOLID STATE LIMITED ::::::::::::::::::::::::::::::::::::

[Appeal from the judgment and orders of the Court of Appeal (Nshimye, Kasule, Tibatemwa-Ekirikubinza, JJ. CA) dated 27th May, 2015, Civil Appeal No. 239 of 2013]

#### **IUDGMENT OF TUMWESIGYE, ISC**

I have had the benefit of reading in draft the judgment of my learned sister, Justice Stella Arach-Amoko, JSC, and I agree with her judgment and the orders she has proposed.

As four of the members of the court agree, this appeal is allowed in part, and the orders of the Court of Appeal are set aside and substituted with the orders contained in the judgment of Hon. Justice Stella Arach-Amoko.

$21st$ Jeanber 2018 $dav$ of ... Dated at Kampala this... Jotham Tumwesigve **IUSTICE OF THE SUPREME COURT**

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## **AT KAMPALA**

# (Coram: Tumwesigye, Kisaakye, Arach-Amoko, Opio-Aweri, Mwondha, JJSC)

#### CIVIL APPEAL NO. 15 OF 2015

#### **BETWEEN**

THE EXECUTIVE DIRECTOR NATIONAL ENVIRONMENTAL **MANAGEMENT AUTHORITY (NEMA)**

**APPELLANT**

#### AND

SOLID STATE LIMITED::::::::::::::::::::::::::::::::::::

(Appeal from the Judgment of the Court of Appeal of Uganda at Kampala by Nshimye, Kasule, Tibatemwa-Ekirikubinza, JJA. Civil Appeal No. 239 of 2013, dated 27th day of May 2015)

## **JUDGMENT OF OPIO-AWERI, JSC**

I have had the benefit of reading in draft, the judgment of my learned sister Hon. Justice Arach-Amoko, JSC. I agree with her decision and orders as proposed.

| Dated at Kampala this | | $\mathcal{L}$ day of December 2018. | | |-----------------------|------------------------------|-------------------------------------|--| | | | | | | | OPIO-AWERI | | | | | JUSTICE OF THE SUPREME COURT | | |

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram : (Tumwesigye, Kisaakye, Arach-Amoko, Opio-Aweri, Mwondha, $JJ. S. C$

## CIVIL APPEAL NO.015 OF 2015

#### **BETWEEN**

#### THE EXECUTIVE DIRECTOR. NATIONAL ENVIRONMENTAL ....... APPELLANT **MANAGEMENT AUTHORITY (NEMA)**

#### AND

SOLID STATE LIMITED ....................................

[Appeal from the judgment and orders of the Court of Appeal before Nshimye, Kasule, Tebatemwa-Ekirikubinza, JJA, dated 27th May, 2015, in Civil Appeal No. 239 of 2013]

#### **JUDGMENT OF MWONDHA, JSC**

I have had the benefit of reading in draft the judgment of my learned sister Hon. Justice Arach Amoko JSC. I agree with the analysis and decision therein that the appeal succeeds partially, and that the cross appeal be dismissed with costs to the appellant.

I also agree with the rest of the proposed orders. Dated at Kampala this ... 21St day of Documber....2018

Thursdue

Mwondha

JUSTICE OF THE SUPREME COURT