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Joseph D. Kessy and Others v. The City Council of Dar es Salaam

Pays/Territoire
Tanzanie, Rép.-Unie de
Type de cour
Nationale - cour supérieure
Date
Sep 9, 1991
Source
UNEP, InforMEA
Nom du tribunal
High Court of Tanzania at Dar es Salaam
Siège de la cour
Dar es Salaam
Numéro de référence
Civil Case No. 299 of 1988
Langue
Anglais
Mot clé
Déchets ménagers Pollution de la mer (immersion de déchets)
Résumé

The Dar es Salaam City Council used to dump garbage, wastes and other refuse collected from all over the city at Tabata area for quite sometime before 1988; when the residents of that area decided to take up the matter to the High Court on the ground, inter alia, that the continued dumping activity posed a danger to life. In early September, 1989, the residents of Tabata obtained a judgment (ex parte) ordering the City Council, inter alia, to cease using the Tabata area for dumping purposes and to construct a dumping ground at a site or place where such activity would not pose danger to life. Immediately the City Council filed an application for review of the judgment (which was later withdrawn) and another application for stay of execution of the judgment for one year; for the Council had since 1984 earmarked a dumping site at Mbagala and had commenced establishing other three Mini-dumps an exercise which would take a Minimum of one year. The application for stay of execution of the judgment was granted.

At the expiry of the extension, the Council came up with another application for a further extension, this time with a different story that a dumping site had been obtained at Kunduchi - Mtongani and the earlier identified Sites had been found unsuitable for some technical reasons. This application was vehemently resisted by the residents of Tabata, but was granted for another one year in appreciation of the promising stories by the Council. Again, at the expiry of this extension in August 1991, the Council brought another new story praying for further extension of three months. It was said, the Kunduchi - Mtongani project fell out due to lack of funds from the central government and an attempt to take over a site at Mbagala Kizuiani had been vigorously obstructed by neighbouring residents, thus plans were under way to shift to Mbagala - Kilungule.

This time, for the residents of Tabata, the application was objected to on two grounds: (1) that it was brought under Section 95 of the Civil Procedure Code, 1966 while there were specific provisions for this type of application; (2) the court was functus in the judgment and thus, had no power to grant prayers in the application.

The court accepted these two grounds, viz. a Court can not make use of the special provisions of Section 95 of the Civil Procedure code where the applicant has his remedy provided elsewhere in the code and has neglected to avail of it; and that the court had no jurisdiction to stay the injunction. The court on the latter ground reasoned that the injunction in this case Constituted both the judgment and decree, so its execution is the operation of the injunction itself, and that in the instant case the court had finally disposed of the suit and was not seized of any matter after the pronouncement of its decision in September, 1989.

Further the Court, authoritatively, viewed that there was no chance of allowing the application on Merits. There was one fundamental reason to this, i.e the Central issue of the Suit was not Mere dumping of garbage at Tabata, but rather the activity of dumping was posing a real danger to the lives of the residents and users of Mandela Road. Therefore, the court held that it was not proper for a public authority, or even an individual, to go to court and confidently seek for permission to pollute the environment and endanger peoples lives. To grant such a prayer would amount to a contradiction in terms and a denial of basic right to life and to protection of that life by the society.

The court made another finding that what the city Council was perpetrating did not only constitute a tort but also a criminal offence under Section 185 of the Penal Code, 1945.