Voster Sialubono and Ors v Lafarge Zambia Plc (2014/HP/1688) [2021] ZMHC 122 (30 May 2021)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: VOSTER SIALUBONO KENNEDY MULOZELA PETER IMANGA FELIX S. SINYAMA ROBBY ZULU ANDSON YONA SITIMA AND 2014/HP/1688 1 ST PLAINTIFF 2ND PLAINTIFF 3RD PLAINTIFF 4TH PLAINTIFF 5TH PLAINTIFF 6TH PLAINTIFF LAFARGE ZAMBIA PLC DEFENDANT Before: The Hon. Mr. Justice Charles Zulu. For the Plaintiff: Mr. B. Mulungushi and Ms. H. Chama, Messrs Milner & Paul Legal Practitioners. For the Defendant: Mrs. C. Ngulube, In-House-Counsel. JUDGMENT Cases r eferred to: 1. Rylands v. Fletcher [1868] LR 3 HC 330. 2. Hubert v. California Portland Cement Co. [1911] 161 CAL. 239. 3. MCGhee v. National Coal Board [1972] 3 ALL E. R. 1008. 4. Karen Sienkiewicz (Administratrix of the estate of Enid Costello, Deceased) v. Grief (U. K) 5. Ltd [2011] UK SCl0. 6. Southwark LBC v. Mills [2001] AC 1. 7. Grant v. Australian Knitting Mills ltd [1936} A. C. 85. 8. Micheal Chilufya Sata v. Zambia Bottlers Limited (SCZ No. l of 2003). 9. Blyth v. Birmingham Waterworks [1856] 11 Ex. Ch 781. -J2- 10. 11. 12. Boomer v. Atlantic Cement Co (26 N. 2d 219 1970). Halsey v. Esso Petroleum Co. ltd [1961] l W. L. R. 683. Luxmore J, in Vanderpant v. Mayfair Hotel Co. [1930] lCh. 138. 13. Continental Restaurant and Casino Limited v. Arida Mercy Chulu (2000) Z. R. 128. 14. Attorney General & Others v. Masauso Phiri (SCZ Appeal No. 161 of 2014) Legislation referred to: 1. The Constitution of Zambia (Amendment) 2016. 2. The Environmental Management Act No. 12 of 2011. 3. Mines and Minerals Development Act No. 11 of 2015. 4. Environmental Management (Licensing) Regulation, 2013 5. Mines and Minerals Development Regulations 2008. Other Works referred to: 1. Clerk & Lindsell On Torts (16 Ed. 1989, Sweet & Maxwell) page 1354 para. 24-01. 2. W. V. H. Rogers "Winfield and Jolowicz on Tort" [2006] 7t,h Edition page 64 7. 3. United Nations Environment Programme, Training Manual on International Environmental Law 2006 page 51 . INTRODUCTION The six Plaintiffs, namely: Vaster Sialubono, Kennedy Mulozela, Peter Imanga, Felix S. Sinyama, Robby Andson Zulu and Yona Sitima of Chilanga District took out a writ of summons and statement of claim dated October 22, 2014, against the Defendant, Lafarge Zambia Plc. The Defendant operates a cement plant and is engaged in the business of mining, production and processing of cement. The Defendant too is located in Chilanga District adjacent to premises occupied by the Plaintiffs. -B- in the statement of claim, it was averred that in 2008, when the Defendant commissioned its new plant, the Plaintiffs were assured that the new plant would not cause any health hazard, nuisance, or environmental degradation or damage to the Plaintiffs' property. It was alleged that since 2008, the Defendant has wrongly caused to emit from the said plant, offensive, poisonous and unwholesome dust and noxious matter. It was alleged that the dust was spread and diffused into the Plaintiffs' houses and surrounding areas, and was causing damage to their motor vehicles and houses. It was averred that as a result of the said dust emission, the Plaintiffs' residences were rendered uncomfortable to live in, and that the Plaintiffs continued to endure breathing difficulties. And that, the Defendant took no remedial measures. The reliefs sought by the Plaintiffs are: (i) damages for nuisance arising from the negligent and/or failure to observe environmental laws resulting into the injury to their persons and Plaintiffs sustaining property; (ii)an order compelling to observe environmental laws whereby they must monitor and/ or ensure that their emissions do not in any way cause damage to the Plaintiffs; the Defendant (iii) costs of the action; (iv) any other relief the court may deem.fit; and (v) further or other re liefs The Defendant in its defence generally denied the allegations, stating that the Plaintiffs will be put to strict proof. THE PLAINTIFFS' CASE BY TESTIMONY -J4- Five Plaintiff Witnesses (PWs) testified. PWl was Robby Andson Zulu, the fifth Plaintiff aged 61 years, a resident of Freedom Compound in Chilanga District. His testimony was very brief. He said he took out the lawsuit to complain concerning the dust emitted by the Defendant. He said since 2012, the dust emitted from the Defendant's plant, had caused some diseases such as coughing and chest pains. He added that the dust emission settles on window panes thereby making them ever dirty. He m a de reference to a m edical report dated April 10, 2019, exhibited at p age 81 of the Plaintiffs' Supplementary Bundle of Documents supposedly issued by the Occupational Health and Safety Institute (OHSI), wherein it was stated that: (l)NO CERTIFICATE can be issued since the above name person [Robby Zulu Andson] is found by the Bureau to be not fit for work as a miner in any circumstances. He or she is therefore not eligible to be examined again by the Bureau for a certificate of fitness: (2) Pneumoconiosis is absent (3) Tuberculosis absent Other reasons for refection Over age and fibrotic lung disease RELAPSE T. B IN 2006. Under cross examination, he stated that he had lived in Freedom Compound since 197 4, and that he found the Defendant Company already in existence as the same was established in 1949. He said his illness started in 2012, and that it took him seven years to go for medical examin ation. -JS- PW2 was Yona Sitima, the sixth Plaintiff aged 49 years, a resident of Freedom Compound, Chilanga District since 1976. He kindled his testimony by stating that they have had problems with the dust emission from the Defendant Company for some time and, that many families within the compound complain of tuberculosis, eye problems, and that the emitted dust settles on buildings and motor vehicles. He added that those that have gardens, dust settles on vegetable leaves as well. He said due to some chest pains he was experiencing, he decided to go for screening at the Occupational Health and Safety Institute in Kitwe . He made reference to his medical report dated April 10, 2019, wherein it was stated: (l)NO CERTIFICATE can be issued since the above name person [Yona Sitima] is found by the Bureau to be not fit for work as a miner in any circumstances. He or she is therefore not eligible to be examined again by the bureau for a certificate of fitness: (2)Pneumoconiosis is absent (3)Tuberculosis absent Other reasons for reiection High Blood Pressure and fibrotic lung disease was treated for T. B. in 2013. He said the high blood pressure and lung infection was related to dust emission from the Defendant. In cross examination, he admitted that it had taken him 43 years to go to the Occupational Health and Safety Institute for medical -J6- examination. He said he used to go to the clinic before. He said his claims were based on the medical report above stated. PW3 was David Daka a resident of Freedom Compound, and a former Ward Development Committee, Treasurer. He repeated the complaints of PWl and PW2 regarding the dust emission from the Defendant. He added that the dust emission was often rampant and was easily seen at around 19:00 to 20:00hours. He said given the increasing number of complaints from residents, environment stakeholders' meetings with the Defendant were held and that he was part of the said meetings. He said the Defendant used to give them assurances that the dust emission would be minimized, but was not minimized. He denied suggestions that the dusty roads contributed to the dust problem in the area. PW4 was Vaster Sialubono, the first Plaintiff, aged 54 years, a Police Officer of Chilanga Police Camp. He said he had lived in Chilanga Police Camp, which is close to the Defendant's plant, since 1997. And that while living there, in 2013, he started experiencing pain in the chest. He said the pain he was experiencing prompted him to go for medical examination in Kitwe on February 23, 2015. He said he was told that he had chest infection. He made reference to his medical report from the Occupational Health and Safety Institute dated February 23, 2015, wherein it was recorded: (l)No CERTIFICATE can be issued since the above name person [Vaster Sialubono] is not up to physical standard required by law. He/she is at liberty, however, to apply -J7- for re-examination after months from the date of the report (2)Tuberculosis is absent ADVISED TO TREAT CHEST INFECTION AS SEEN ON CHEST X-RAY pneumoconiosis is absent PW4 added that the dust emission also accumulates on motor vehicles , window panes of houses and was hard to remove from the surface with plain water once it settled. He explained that when the problem was shared with the Defendant by a team from Freedom Compound and the Police Camp, the Defendant started releasing 2.5 litres of spirit of salt to them to use to remove the dust from the surfaces of their motor vehicles (window screens) and their houses. Under cross examination, he stated that the medical report above was the only medical evidence that he had. However, he insisted that the chest infection was as a result of dust emission from the Defendant's plant. PWS was Charles Mwenya, the Managing Partner of Crownbit Environmental Solution Limited ("a consortium of environmental experts"). He said in 2016, his company was approached by the community, for Crownbit to conduct an environmental impact assessment on the impact of the emission from the Defendant on the community. He said from the terms of reference, Crownbit constituted a team of experts to carry out the assessment. He said after the assessment, a report was compiled, exhibited in the Plaintiffs' Supplementary Bundle of Documents dated 2016, dubbed: "Socio-economic Impact of Air Emission from Chilanga Cement Plant on Surrounding Communities, Chilanga District". -J8- PWS said the findings from the above stated report were that, the impacts were both physical and non-physical. He said most of the plants in the community were silted and covered in dust. And that most of the houses were covered in dust, and residents were unable to maintain their household gardens. He added that there were cases of irritations, but subject to proof by medical doctors. PWS said the report was shared with the Defendant, but the Defendant chose not to attend the scoping meeting, and did not comment on the report. In cross examination, he said the Zambia Environmental Management Agency (ZEMA) was the mother body mandated to regulate environmental impact assessments. He added that for any report to be valid there was need for approval by the ZEMA. He admitted that the report by his organization was not validated by ZEMA. THE DEFENDANT'S CASE BY TESTIMONY Two Defence Witnesses (DW s) testified on behalf of the Defendant. DW 1 was Monde Nyumbu Chicha, a Talent Manager in the employ of the Defendant. She noted that the Defendant Company has been in existence since 1949. She said the Defendant as a mining company; one of her responsibilities was to ensure that employees of the Defendant underwent mandatory medical examinations with the Occupational Health and Safety Institute before recruitment. She added that after employment, all employees are subjected to the said medical examination on an annual basis. -J9- It was her evidence that the tests at the OHSI assessed two diseases, pneumoconiosis a.k.a. silicosis and the presence of tuberculosis as a pre-employment requirement. She added that having joined the Defendant around 2016, she had no record of any employee of the Defendant having silicosis condition (pneumoconiosis or tuberculosis diseases). She observed that, the Defendant has had long serving employees close to 30 years, who have been exposed to the alleged emission, but with no record indicating that they were exposed to silica. DW 1 said the plant currently in operation was commissioned 1n 2008. According to her, in cement industry, an eleven-year-old plant (Chilanga) was relatively new, operating within acceptable levels of em1ss10n. She said the Defendant was regulated by the ZEMA, and if the Defendant was not compliant, the plant would have been shut down. She made reference to minutes of the Environment Stakeholders Meeting held on September 2013, wherein it was recorded: "Musamba roads were not done to standard and the Chilanga estate road is too dusty-Kelvin". She said at that material time, the road condition contributed to a dusty environment in Chilanga. DWl doubted the validity of the medical reports relied on by the Plaintiffs. She inter alia noted that the date of examination and the date of the report were the same. She said from her experience, it was practically impossible due to high volume of people seeking silicosis examination at the OHSI, to have a report issued on the day of -JlO- examination. She said the practice was that, it would take several months and in some cases a year for one to receive a medical report. She further explained that in respect of pre-employment, they would receive a narrative report of the results received indicating either pass or fail, but a certificate would only be released at a later date. As regards the claim for damage to property, she stated that several employees at Lafarge, park their motor vehicles within the plant's vicinity for about eight hours on a daily basis, but at no point had the Company received complaints of damage to the said motor vehicles. And that there was no damage caused to window panes at both the plant and the head office by the alleged dust emission. DW2 was Felistus Sawasawa, an Environmental Officer in the employ of the Defendant. She said she had worked for the Defendant for eleven years, as an Environment and Safety Specialist. She said her duties included: ensuring that the Defendant complied with governing local regulations and internal group standards; monitoring emission levels; and submitting biannual reports performance to the ZEMA, and on a monthly basis to the Mines Safety Department. She added that it was her responsibility to monitor the Defendant's performance on a daily basis in terms of air emission from the tanks, chimneys and fugitive dust. It was her testimony that the ZEMA often conducted random inspections on the plant using their own monitoring equipment. She recounted that before the commissioning of the current Chilanga 2 Plant in 2008, the Defendant undertook an Environmental Impact -Jll- Assessment (EIA) through the ZEMA, and that the same was approved by the ZEMA. DW2 made comments regarding the report relied on by the Plaintiffs compiled by Crownbit, and with reference to page 19 of the report, she said the report only showed the number of people interviewed, the language and level of education. According to her, in order to ascertain the impact, there was n eed to quantify the emission. She said this was missing from the report. She added that for an EIA report to be valid and usable by other institutions there was need for issuance of a decision letter from the ZEMA. She stated that the Defendant had put up a number of things in place in order to ensure that they operate as regulated by both the ZEMA and the Mines Safety Department. According to her, Chilanga 2 Plant was a state of the art plant. She said the Defendant had put in place dust collectors that trapped dust and filtered all the air exhausted through the chimneys. And that trapped dust was recycled into the system. She explained that in accordance with their licence under the ZEMA, the Defendant was allowed to emit up to 50 milligrams per normal cubic-meter, whereas under their group guidelines they were allowed to emit up to 30 milligrams per normal cubic-meter. She added that the chimneys were installed with a Continuous Emission Monitoring Equipment (CEME). That the Chilanga plant was automated at 20 milligrams per normal cubic-meter. She explained that if they did not act in time at 30 milligrams per normal cubic-meter, the plant would automatically shut down. -J12- DW2 said the source of fugitive dust within the community was varied, such as: open ground within the Police Station; the sand stockpiles along Kafue Road; and a number of gravel roads within the vicinity. She added that in 2013, there was a lot of road construction resulting in dust emission in the community. And that "TAP'' a company that manufactured asbestos was at the material time operational. She said during this period Chilanga as a whole was exposed to fugitive dust. In relation to the first Plaintiffs claim, Mr. Vaster Sialubono's chest infection; she said chest infections can be caused by a number of factors such as change of weather conditions. She said since the Defendant in its industry extracted raw materials from natural resources, which contained silica, by law the Defendant was continuously obliged to monitor the health status of its employees in respect of pneumoconiosis and tuberculosis. SUMMARY OF THE PLAINTIFFS' SUBMISSIONS Both parties through their respective counsel filed written submissions. Counsel for the Plaintiffs kindled their arguments by acknowledging that, while the case was new or novel to the Zambian jurisprudence, the nuisance in issue was not alien to common law jurisprudence. Regarding definition of "nuisance", Clerk & Lindsell On Torts (16 Ed. 1989, Sweet & Maxwell} page 1354 para. 24-01 was vouched, wherein it is recorded: -J13- Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or some easement, profit, or other right used or enjoyed in connection with the land when it is a private nuisance. It was submitted that the Defendant's dust emission was a nuisance, because it caused interference, disturbance and annoyance to the Plaintiffs in the enjoyment of their premises. And the celebrated case of Rylands v. Fletcher [18681 LR 3 HC 330, was cited in which Lord Blackburn said: The true rule of law is that the person who for his own purposes bring on his land and collects and keeps there anything likely to do mischief if it escapes, must do so at his own peril, and he is prima facie answerable for all the damage which is the natural consequence of its escape. It was argued that dust emission constituted pollution. The Plaintiffs' Counsel added that through the testimonies of PW 1, PW2, PW3 and PW4, it was evident that the residents of Freedom Compound had continued to suffer health challenges as a result of dust emission. And in reference to the Environment Stakeholders Meeting held on September 26, 2014, it was submitted that the meeting deliberated on community sensitization on pollution prevention and protection; it was thus argued that this was in itself an indication that the Defendant was aware that the Defendant's emission caused pollution. It was added that given the Defendant's donation of spirit of salt to residents of Freedom Compound, it was inferable that the Defendant was admitting to negligence. -J14- It was argued that the emission (nuisance) was as a result of the negligent manner the Defendant was conducting its business, by causing pollution to the environment. And as regards the approach the Court should take against pollution, reference was made to the case of Hubertv. California Portland Cement Co.[19111161 CAL. 239 wherein it was held: In a day when there is growing concern for clean air, a highly developed industry should not expect acquiescence by the Courts but should instead plan its operations to eliminate contamination of air and damages to its neighbors. It was contended that as a result of the dust emission, the Plaintiffs herein suffered actual damage, and injury to their health, and the proof relied on were medical reports from the Occupational Health and Safety Institute. On the alleged other possible sources of dust emission, it was argued that the Defendant should not be allowed to escape responsibility by shifting blame to others. It was argued that the Defendant should be found liable because, the Defendant's action materially increased the risk of injury. In this regard reference was made to the case of MCghee v. National Coal Board (1972} 3 ALL E. R. 1008 wherein it was held: The Defendant was liable for negligence to the Plaintiff if the Defendants breach of duty caused or materially contributed to the injury suffered by the Plaintiff notwithstanding that, they were other factors for which the Defendant was not responsible which may have contributed to the injury. -JlS- Regard was also had to the case of Karen Sienkiewicz (Administratrix of the estate o(Enid Costello, Deceased) v. Grief (U. KJ Ltd (2011) UK SClO, the court held: If exposure to the dust is partly due to the Defendant's negligence and partly not, the Defendant will be liable to the extent that his breach of duty has materially contributed to the disease. If there is more than one Defendant, liability can be apportioned. It was thus contended that, even though the Plaintiffs' medical reports obtained from Occupational Health and Safety Institute, did not demonstrate the origin of the chest infections, so long as the dust emission from the Defendant Company had potential to materially increase the chances of someone suffering from chest conditions, was enough to attribute liability to the Defendant. It was submitted that the Plaintiffs had proven their case that the Defendant did contribute to the ailments they suffered. Finally, it was argued that the Defendant should be condemned to pay the Plaintiffs damages for nuisance arising from the negligence of the Defendant, and make an order for the Defendant to be compelled to comply with environmental laws to avoid causing further damage to the Plaintiffs. THE DEFENDANT'S SUBMISSIONS Mrs. Ngulube, in-house-Counsel for the Defendant, started b y acknowledging that the Plaintiffs' claims bordered on the tort of nuisance, and was closely connected to protection of the environment. -J16- Regarding limitations on the tort of nuisance, and from a common law position, the learned authors of Win(i.eld and Jolowicz on Tort, [2006[ 7th Edition p647 were cited, wherein it is reported: Not every slight annoyance is actionable. Stenches, smoke, the escape of effluent and a multitude of different things may amount to a nuisance in fact but whether they constitute an actionable nuisance will depend on variety the character of the of considerations, especially Defendants conduct, and a balance of conflicting interest. Infact, the whole of the law of private nuisance represents an attempt to preserve the balance of conflicting interests, that of one occupier using his land as he thinks fit, and that of his neighbor in the quiet enjoyment of his land. It was observed that the Defendant Company was incorporated and built in 1949, making the Company 70 years in existence, and that the Plaintiffs built their homes around the plant. It was thus contended that it was common cause that the Plaintiffs should expect some level of discomfort. To support the above proposition, Counsel made reference to an English case of Southwark LBC v. Mills [2001[ AC 1 wherein it was held: If you choose to make your home in the heart of a manufacturing district, you can expect no more freedom from discomfort usually associated with such a place than any other resident. By making reference to the testimony of DW2, it was contended that, Chilanga was generally a dusty area with fugitive dust coming from several plants mushrooming in the area, bad gravel roads, heavy traffic, open grounds around the Police Station and sand stock piles heaped along the Kafue Road. It was argued that dust in the area -J17- could not solely be attributed to the Defendant in the face of many other sources of dust. And from a statutory position, it was observed that the plant being a cement plant, was in compliance with environment laws, in particular the Environmental Management Act No. 12 of 2011 (hereinafter ref erred to as "the EMA"), under the auspice of the Zambia Environment Management Agency (ZEMA) on the one hand, and by the Mines Safety Department on the other hand. It was submitted that the legally permissible emission for dust was "50mg ppc", and regard was had to the Environmental Management (Licensing} Regulation, 2013 rules 5, 6, and 7, which provides: 5.(1). the emission limits shall be as prescribed in the Second schedule. (2). The emission limits apply to a plant, undertaking or process that emits air pollutants. 6. the Agency shall, in accordance with the guidelines set out in the Second Schedule, assess the quality of ambient air in order to protect human health, animal or plant life and the environment. 7. (1) a holder of an emission license relating to air shall (a) comply with the emission limits in the Second Schedule; And it was noted that pursuant to rule 7(1)(a) above, the Second Schedule, made provisions for emission limits for air pollution by different industry /processes, and that 1n the case of cement production it was: "Dust 50mg/Nm3". It was added that the Defendant Company apart from emitting only to limits of what was legally permitted; the Defendant also had an internal continuous -J18- monitoring mechanism in place. It was thus argued that the Defendant was releasing emissions in line with what was permitted by the law, and within its legal rights. To support this argument, the case of Grant v. Australian Knitting Mills ltd {19361 A. C. 85 was vouched, wherein Lord Wright held as follows: The mere fact that a man is injured by another's act gives in itself no cause of action: if the act is de liberate, the party injured will have no claim in law even though the injury is intentional. So long as the other party was merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists. It was contended that the report by Crownbit should be discounted because it fell short of an environmental impact assessment report, in the sense that, it was poorly written, failed to quantify the emission and was not sanctioned by the ZEMA. And as regards the claim that the alleged nuisance was caused by the negligent conduct of the Defendant; it was submitted that the Plaintiffs had not proved that as a result of the alleged dust emission, the Plaintiffs suffered personal injury. Regard was had to the case of Micheal Chilufya Sata v. Zambia Bottlers Limited SCZ No.1 of 2003 wherein the Supreme Court of Zambia held: For the plaintiff to be entitled to damages in the tort of negligence, it has to be established that he or she has suffered some injury, failure to which damages will not be awarded. It was argued that the medical reports relied on by the Plaintiffs purportedly from Occupational Health and Safety Institute were -J19- questionable. And it was further noted that none of the Plaintiffs had exhibited their medical history records vital to this case. I was urged to dismiss the Plaintiffs' claims. DETERMINATION I have carefully considered the evidence adduced and the submissions made thereof, respectively. I desire to state that this was not a class action, because it was not so stated as required by Order XIV r. 1 of the High Court Rules Chapter 27 of the Laws of Zambia (HCR). Order XIV r. 1 HCR, prescribes that a representative or class action must be so stated in the writ. Therefore, the evidence adduced by the three Plaintiffs (PWl , PW2 and PW4) cannot be deemed to extend to the other Plaintiffs that did not testify. In any case, testimonies of the said three Plaintiffs made no specific reference to their co-Plaintiffs. I will inaugurate my determination by making reference to some legal principles and relevant statutory provisions. From the way the Plaintiffs' pleadings were settled, it is quite evident that it is not the old fashion way of purely narrowing the alleged breach on civil wrongs as provided under common law. However, that is not to say common law is void of principles aimed at protecting the environment or remedies compensating for the damage suffered. The tort of nuisance and negligence remain the most common actions 1n environmental litigation. It is apparent that where allegations of nuisance and n egligence coupled with the nature of the remedies sought are connected or -J20- incidental to environmental laws, the court in its adjudication, must be in tune with contemporary best practices in environmental law protection and litigation, such as the extension of damages to cover damage to the environment itself, if proved and pleaded. Notably, under Article 255 (b) of the Constitution of Zambia, it is provided that: "the person responsible for polluting or degrading the environment is responsible for paying for the damage done to the environment". Therefore, the court should not only restrict itself to common law principles, but consider environmental laws 1n particular, the constitutional amendments introduced in 2016 on Principles of Environmental and Natural Resources Management and Development, the EMA, other relevant legislation, and developing principles that have since emerged in the recent past having a bearing on the matter herein. This is primarily so, because a nuisance act may not only entail damage to human health and property, but environment harm or damage as well. Additionally, the plant herein being a cement plant engaged in mineral processing, falls under the jurisdiction of the Mines and Minerals Development Act No. 11 of 2015, and the same contains provisions relevant to and having a significant legal bearing on the outcome of this matter. It is not in dispute that the Defendant operates a plant in Chilanga District, used for production of cement, a product used in civil construction. The plant has been in operation since 1949, and is surrounded by residential townships including a Police Camp, and -J21- the new plant was commissioned in 2008. The Plaintiffs in particular PWl, PW2 and PW4 reside in the surrounding neighborhood to the plant. It is clear from the testimonies of PWl, PW2, PW3 and PW4 that when the cement plant is in operation, the plant emits fugitive dust, which dust generally settles on neighboring residences, in particular in Freedom Compound and Chilanga Police Camp on houses, motor vehicles, and gardens of residents. Given the nature of the industry, being a cement plant with some form of emissions, it's inherently foreseeable that putting up with some level of discomfort for those residing within the precincts of the plant, becomes inescapable and unfortunately a fact of life, but it does not deprive those unbearably and materially affected the right to seek legal redress and receive remedial justice once the claims are proved. I am mindful of the case of Blyth v. Birmingham Waterworks [1856[ 11 Ex Ch 781; in determining the standard of proof in negligence cases, it was held that: the standard demanded is thus not of perfection, but of reasonableness. However, it is important to appreciate that the tort of nuisance is distinct from the tort of negligence; to succeed in nuisance, the Plaintiffs need not to prove negligence. In other words, negligence is not an ingredient of the cause of action for nuisance (per Veale Halsey v. Esso Petroleum Co. ltd [1961] l W. L. R. 683). The law sets prescribed minimum standards as evinced by the Environmental Management (Licensing) Regulation, 2013. It is -J22- clear that emission limits in the case of dust from a cement plant as provided in the said Second Schedule is "Dust 50mg/Nm3", which DW2 amplified to mean: 50 milligrams per normal cubic-meter. The unchallenged evidence adduced by the Defendant through DW2 , was that, the Defendant's emission limit was automated at 20 milligrams per normal cubic-meter, and did not exceed 30 milligrams per normal cubic-meter, otherwise the plant would shut down automatically. I do not doubt that the sources of fugitive dust in the precincts under consideration are multiple, but this cannot be the r eason the Defendant should not be held liable, provided the Plaintiffs prove that the emission of dust from the plant is or was substantially intolerable. I am convincingly satisfied that the emission of the said fugitive dust by the Defendant constitute nuisance to the Plaintiffs, in particular to PWl, PW2 and PW4; the Plaintiffs that adduced evidence in support of their case. But a question for further consideration is whether the said nuisance is actionable. Benchmarks can be drawn from other jurisdictions. In an American case of Boomer v. Atlantic Cement Co (26 N. 2d 219 1970}, the plaintiffs sued the defendant that used to operate a cement plant near Albany. The plaintiffs were land owners, who alleged that they endured injury to their property from dust, smoke, and vibration emanating from the defendant's cement plant. The cement plant operator was found liable in nuisance, and "permanent damages" were awarded to the plaintiffs. But an injunction to close the plant was not allowed, based on some commercial sense that, the total -J23- damage to the plaintiffs' properties was relatively small 1n comparison with the value of the defendant's operation. In the present case, I reckon the emission limit set at 50 milligrams per normal cubic-meter, is a mitigatory measure to protect the environment, rather than a legal right to pollute the environment or cause nuisance. The Defendant claimed that its emission was within the exercise of its legal right; I find this proposition rather misconceived because compliance with emission limits solely under the EMA, does not necessarily render non-justifiable the right to a cause of action for nuisance. Similar views were endorsed by Veale J . in a landmark case of Halsey v. Essa Petroleum Co. ltd (supra) involving a claim for nuisance, Veale J , made reference to remarks by Luxmore J, in Vanderpant v. Mayfair Hotel Co. (1930[ lCh. 138 to the effect that: The making or causing of such a noise as materially interferes with the comfort of the neighbor whenjudged by the standard to which I have just referred, constitutes an actionable nuisance, and it is no answer to say that the best known means have been taken to reduce or prevent the noise complained of, or trade in a reasonable and proper manner. Again, the question of existence of a nuisance is one of degree and depends on the circumstance of the case. Apart from the rule in Rylands v. Fletcher (supra), I am further grounded in section 87(1) of the Mines and Minerals Development Act No. 11 of 2015, which imposes strict liability, that is to say, there is no need to prove "fault liability" by alleging fault on the part -J24- of the Defendant. It should be noted that: "it does not matter whether the perpetrator behaved correctly or incorrectly; the decisive factor is that the damage was caused by the defendant's conduct. The plaintiff need only prove the causal link between the action of the alleged perpetrator and the damage" ( see United Nations Environment Programme, Training Manual on International Environmental Law 2006 page 51) . And for the avoidance of doubt section 87(1) of the Mines and Minerals Development Act No. 11 of 2015 provides as follows: A holder shall be strictly liable for any harm or damage caused by mining operations or mineral processing operations and shall compensate any person to whom the harm or damage is caused. It is my considered opinion that if it is established that the nuisance arising from emissions or any other pollutant source is a causal link to personal injury or lung diseases, the plaintiffs were made to suffer or, was a direct or consequential cause of damage to their properties respectively, the polluter or tortfeasor will still be held liable, notwithstanding that the polluter or tortfeasor was operating within the permissible emissions. The Second Schedule, which makes provisions for emission limits for air pollution by different industry /processes, and in the case of cement production stands at "Dust 50mg/Nm3", should not be applied in isolation with the provisions of the principal Act, which subject to the Constitution, confers on every person the right to a clean, safe and healthy environment (see section 4 of the EMA) , and most importantly section • •• -J25- 87(1) of the Mines and Minerals Development Act No. 11 of2015 aforementioned. The right to a clean, safe and healthy environment, when interfered with entitles a victim to have legal redress by taking out a suit for nuisance or/ and negligence against the polluter or tortfeasor. And that is what the Plaintiffs herein did. The dust emission limit for cement production set in the Second Schedule, does not render the "Polluter Pays Principle" envisaged in section 6(d) of the EMA read together with section 87(1) of the Mines and Minerals Development Act No. 11 of 2015 inoperative in the context of the circumstances of this case, and a holistic legal framework pertaining to this matter. Furthermore, regulation 23 (3) and (4) of the Mines and Minerals Development Regulations 2008 provides: A holder shall be liable for any harm or damage caused by any mining or mineral processing operation and shall compensate any person to whom harm or damage is caused. The harm or damage envisaged here and in the principal Act, is any harm or any damage, caused by any mining or mineral processing operation to any person, regardless whether it was within the permissible emission of air pollution or not. The state of the machinery at the Defendant's plant does not take away that liability, perhaps it only goes to mitigate the damage. The nature of strict liability stated above does not completely diminish liability on account that the operator was using state of art technology. • I I • -J26- It was pointed out that the Defendant Company has been in existence since 1949, before the Plaintiffs took occupation in the vicinity of the plant. Having regard to the doctrine of strict liability, it cannot be said that the Defendant had a prescriptive right to cause the nuisance and avoid liability. In any case, the Plaintiffs started raising concerns around 2012, about air pollution, and took out an action in 2014, therefore, there is no room to assert prescriptive rights. In the light of the above, it is important to make reference to minutes of the Environment Stakeholders Meeting held on April 27, 2015, under the letterhead of Lafarge exhibited at page 10 of the Plaintiffs' Bundle of Documents. Among other participants from the community, one Benson Hamujamba was recorded to have complained as follows: Mr. Hamujamba also complained bitterly about the damage that has been caused by plant emissions on the vegetable, houses, cars, and other properties. Benson Hamujamba requested that next time we have a stake holder meeting, more people should come from affected areas so that they can also voice out their concerns. He also wanted to find out what has been done to mitigate the current problem both on a short term basis as well as long term basis. Mr. David Dziubinski, the Plant Manager of Lafarge, did not discount the complaints raised regarding dust emission, he was recorded to have magnanimously responded as follows : In closing David thanked the stakeholders with the good work they are doing and that they should assist as we take -J27- a more proactive role in ensuring that our envi.ronment is conducive. The rationale for strict liability in environmental harm, as it were, is that the tortfeasor or polluter that benefits or profits from potentially harmful or inherently dangerous activities should be held liable for damage that occurred as a result of the harmful activity (see UNEP, Training Manual on International Envi.ronmental Law 2006 page 51) The Plaintiffs in particular PWl, PW2 and PW4 are, therefore, entitled to damages for nuisance arising from fugitive dust emitted by the Defendant, which has caused real and substantial interference, annoyance and discomfort with their quiet enjoyment of their land and land occupation. Indeed, the dust cumulatively and intolerably settles on their houses in particular on window panes, motor vehicles and gardens. The issuance of spirit of salt to the Plaintiffs by the Defendant to scrub off the sticking dust particles from the surfaces of their affected properties; in some material way not only confirms the gravity of the nuisance, but also confirms that the Defendant was acknowledging its responsibility and sought to mitigate the damage. However, liability regarding personal injury for contracting lung diseases and other alleged ailments allegedly caused by negligence or/ and nuisance is untenable because it was not proved with credible medical evidence that the said fugitive dust caused the Plaintiffs to suffer from lung diseases or other ailments. Once again, the case of Micheal Chilufya Sata v. Zambia Bottlers Limited (supra) 1s reverted to, wherein the Supreme Court guided as follows: -J28- For the plaintiff to be entitled to damages in the tort of negligence, it has or be established that he or she has suffered some injury, failure to which damages will not be awarded. Furthermore, in the case of Continental Restaurant and Casino Limited v. Arida Mercy Chulu (2000) Z. R. 128, the Supreme Court had this to say: The basis of awarding damages is to vindicate the injury suffered by the Plaintiff. ... nothing will be awarded if no proper evidence of medical nature is adduced. The Plaintiffs' documentary evidence relied on as "medical proof' does not show in any way that the alleged fugitive dust was the cause of the chest infections complained thereof. The tests do not show what exactly the Plaintiffs were suffering from. And for some of the Plaintiffs, there was no m edical evidence adduced whatsoever. The Plaintiffs also sought for an order to compel the Defendant to comply with environmental laws, the claim is vague; neither did the Plaintiff adduce evidence as to what specifically the Defendant should be ordered to do or undertake. Therefore, the claim is untenable. ASSESSMENT OF DAMAGES/CONCLUSION As I conclude, I wish to reiterate that this was not a class action, because it was not so stated as required by Order XIV r. 1 of the High Court Rules Chapter 27 of the Laws of Zambia (HCR). Order XIV r. 1 HCR, requires that a representative or class action must be so stated in the writ . Therefore, the favorable determination in favour of Vaster Sialubono, Robby Andson Zulu and Yona Sitima does not • ( I I, -J29- extend to the others who did not testify, and for which there was no evidence adduced in specific reference to their claims. In any event, the nature of the evidence adduced was such that the nuisance was private rather than public. Therefore, damages to be assessed for nuisance are for the first Plaintiff (PW4), fourth Plaintiff (PW2) and the fifth Plaintiff (PWl), only. In assessing damages, I bear in mind that there is no proof that the nuisance caused personal injury affecting the Plaintiffs' health by way of contracting lung diseases or indeed any other diseases, apart from injury in terms personal inconvenience, annoyance , and discomfort suffered by the successful Plaintiffs. There was no proof that the nuisance caused physical damage, i.e. diminution in the value of the land or any movable property. And I am mindful that continuous exposure to potential harm of silica can cause a great deal of worry, anxiety and discomfort to the Plaintiffs. I also bear in mind what the Supreme Court said in the case of Attorney General & Others v. Masauso Phiri (SCZ Appeal No. 161 of 2014} essentially enjoining courts to generally adopt the "principle of moderation" , as it were, in assessment of damages. In delivering the judgment of the Court, Kaoma J. S, had this to say: We have also considered what we said in the Felix Chris Kaleya case, that local precedents favour moderate figures consistent with Zambian values under the prevailing economic and social situations. It is also trite that damages are assessed once and for all. Therefore, the award must relatively reflect some degree of adequacy, and -J30- fairness . Under the circumstances of this case a reasonable fair solatium awarded to each successful Plaintiff namely, Vaster Sialubono, Robby Andson Zulu and Yona Sitima is the sum of Twenty Five Thousand Kwacha (K25, 000.00) with interest at the average short term deposit rate from the date of writ of summons to date of judgment, and thereafter at the lending rate until final payment. And I so award respectively. Finally, as regards costs, the order for costs is twofold. Firstly, I order costs to the successful Plaintiffs, to be taxed in default of agreement. Secondly, for those Plaintiffs that have not succeeded, namely Kennedy Mulozela, Peter Imanga, and Felix Sinyama, I make no order as to costs. I will not condemn the unsuccessful Plaintiffs to costs on account that the suit is of public importance in the sphere of environmental protection vis-a-vis enforcement of the "Polluter Pays Principle" from the tort of nuisance perspective. It is, therefore, hoped that Lafarge, apart from meeting the modest award of damages, will react to this judgment by doing more than before, in terms of putting in place necessary measures to contain the dust emission and prevent or mitigate its chilling and adverse effect thereof. Leave to appeal is granted. DATED THIS 20THDAY OF MAY, 2021. THE HON. MR. JUSTICE CHARLES ZULU