Joseph D. Kessy and Others vs The City Council of Dar Es Salaam (Civil Case No. 299 of 1988) [1991] TZHC 2109 (9 September 1991)

IN THE HIGH COURT OF TANZANIA . AT DAR ES SALAAM ., CIVIL CASE NO. 299 OF 1988 JOSEPH D. KESSY AND OTHERS .................. APPELLANT VERSUS THE CITY COUNCIL OF DAR ES SALAAM ........... RESPONDENT RULING LUGAKINGIRA; This was an application for extension ohime on a stay of execution in a legal battle that has pitched the City Council of Dar es Salaam and the residents ofTabata, City suburb, since 1988. On I st September, 1989, residents of Tabata obtained a judgement from this Court in which the City Council was ordered, inter alia, to cease using the Tabata area for dumping garbage collected in the City, and to construct a dumping ground at a site or place where the dumping activity would not pose a danger to life. This judgment was ranted exparte, the City Council having become dilatory in filing a defence. On the following day the council, through its solicitor, filed an application for review of the judgment and another application for staying execution of the judgment. On i 11 September the City Solicitor followed up these3 applications by filing a notice of appeal to ,vhat ,vas termed "The High Court of Appeal of Tanzania." The application for review and the notice of appeal (Which were irreconcilable, any way), were withdrawn. The City Solicitor, who was then Mr. Jopseph Mbuna, was then herd on the application for stay of execution. He informed the court that the council had earmarked a dumping site at Mbagala since 1984 and that it would a minimum of two years to move to that site. He further informed the court that, in the interim, the council had already commenced establishing three mini-dumps in the three districts of the City and that the exercise would take a minimum of one years. He therefore prayed for execution of judgment to be stayed for one year. The application was hotly contested by Mr. Maira who appeared for the Tabata residents, but in the end it was granted, precisely in appreciation of the promising representations by Mr. Mbuna. The extension was to expire on 31 st August, 1990. On 2gt 11 August, three days before the extension was to expire, Mr. Mbuna filed an application for a further extension of one year. This time he told the court that a dumping site had been obtained at Kunduchi Mtongani . He made no fuarther mention of the Mbagala site, be it in his affidavit or in his submissions in court, apart from the general statement that three dumping sites had been identified but had been found unsuitable after technical evaluation. He went on to say that specialised equipment was needed to prepare the Kunduchi Mtongani site and that this had been ordered from .Japan. He produced a Proforma Invoice to that effect and asserted that the equipment had already been paid for. He said that it would take six months for the equipment to arrive at Dar es Salaam and another six months for the same to be cleared, installed and

tested, hence the prayer for a one-year extension. This application was similarly resisted by Mr. Maira who also observed that, ''There is no law which supports the application." The Court reluctantly granted the extension, to expire on 31 st August, 1991. On 30 th August, just a day before the extension was to expire, the City Solicitor, now Mr. George Kakoti, filed the present application, this time praying for on extension of three months. At the hearing of the application three days ago he umilaterally reduced the period to two months. He also had a new story. The development of the Kunduchi Mtongani site had fallen out due to luck of funding by the General Government, and the council's vaste disposal experts had failed luck on Mbagala. On 20 th August the council's officials sought to take over a site at Mbagala Kizuiani but they were vehemently obstructed by neighbouring residents and sand excavators. At a meeting held the following day with representatives of the residents it was agreed that the dumping site be shifted to Mbagala Kilungule, Mr. Kakoti said that it would require construction of a 1.3 km read to reach the agreed site. He also said that. the council had already entered into an agreement with a contractor to do the job. In the premises he prayed for two months extension from 1 st September. Mr. Maira \Vas again at hand to resist the application. Apart from his general observations on the merits, he submitted that the application was incompetent and ought to be dismissed on two grounds. First, he observed that it was brought under Section 95 of the Civil Procedure Code while there were specific provisions for this type of application, and he named those as 0. 21, r. 24 and 0. 39, r. 5 of the Code. Secondly, he submitted that having regard to the circumstances of this case, it was not open for the Court to stay the operation of the injunction. He argued that the Court was functus officio in the judgment and had not power to vacate it except a higher court on appeal. Turing to the merits of the application, Mr. Maira observed that these have been inconsistent representations on behalf of the council since 1989, such that it was risky to believe the latest story. He added, citing Roberts V. Gwyfai D. C. (1899) 2 Ch. 608, that his clients had established their right and had established that the council was violating that right, and submitted that the Court was bound to protect his clients against that violation. And he thought that the council was being lackadaisical in its efforts to .construct the access road for there were several public and private firms which were taking sand from the vicinity of the proposed site and which could be mobilised to work on the road. In so far as I could gather, Mr. Kakoti, in reply, touched on the appropriate provisions applicable in these application but he did volunteer any opinion on the jurisdiction of the Court to stay the injunction. Generally, he said that the City Council had a statutory authority to ensure the health of all the residents of Dar es Salaam and argued that in the exercise of this authority the interests of specific groups had to be subordinated. Put differently, he thought it was available to violate the rights of a limited group by dumping garbage in their midst rather than leave it to rot all ever the city. I took time to consider these arguments some of which are significant in their nevelty. I think it is logical to begin with the basic issues raised by Mr. Maira. Mr. Maira's first argument was that the application 'Vas wrongly brought under S. 95 of the Civil Procedure Code and should have been brought under 0. 21, r. 24 and 0. 39, r. 5 thereof. Indeed in his main submissions and in reply to Mr. Maira, Mr. Kakoti 2

suggested that the application was brought under S. 95 and sought to justify that position. I find this slightly perplexing. l say so because the chamber summons drawn and filed by Mr. Kakoti states that the application was being made under SS.68 (e ), 93 and 95 of the Civil Procedure Code; but judging by his unequivocal submission on the subject, it is more than apparent that he abandoned SS.68 (e) and 93. Is it true that stay of execution and extension of stay are not specifically provided for? 1 do not think so. Mr. Maira was certainly incorrect when he referred to 0. 39, r. 5 simply. The former applies to stay of execution by a court to which a decree has been sent, as opposed to the court passing the decree, while with the latter provision, a distinction has to be made between r. 5 (I) and 5 (20. The former applies to stay of execution by an appellate court while the latter is the proper provision for the court which passed the decree. On the other hand, extension of time is, indeed, provided for under S. 93 of the Code. The position in law is that inherent jurisdiction under S. 95 is exercisable subject to the ruled that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked. A court cannot make use of the special provisions of S. 95 where the applicant has his remedy provided elsewhere in the Code and has neglected to avail himself of it. Jooma V. Bhambia (1967) EA. 326. In that case, which, ironically was cited to be Me by Mr. Kakoti, this Court set aside an order for extension of stay of execution which was made under S.151 of the Indian Code of Civil Procedure, the equivalent of our section 95. It follows, in my view,that that application before me must similarly fail as it was brought under S. 95 while specific provisions governed the matter. Mr. Maira's other point was that the court had no jurisdiction to stay the injunction. I think, with respect, that there is merit even in this point, and I propose to approach it more broadly. First of all, the injunction in the instant case constituted the judgment and decree. The execution of an injunction such as this is the operation of the injunction itself; therefore, to suspend the operation of such an injunction is in effect to raise it. Execution of some injunctions is this different from, say, execution of a monetary judgment where the decree-holder may seek satisfaction by attachment and sale of some property belonging to the judgment-debtor. In the latter case the attachment may be stayed without doing harm to the judgment for payment. It is not so with some injunctions where to stay execution would practically mean to vacate the judgment. I think, therefore, that there is need for prudence when a court embarks on staying an injunction lost, as in the instant case, it should result in licensing the very evi Is that the judgment is supposed to cure. Secondly, it is noted that in the instant case the court finally disposed of the suit and was no longer seized of any matter therein as of 1 st September, 1989. The ruling and the decree based thereon do not leap anything for future settlement but are immediately effective; in other words, the injunction was immediately operative the moment a decree was drawn and signed. In my view, the Court was from that moment functus officio and it was no longer in its power to turn back and suspend the injunction three weeks after the event. Such power could only be exercised by an appellate court. This matter in MULLA 914 th Edn.) where it is said on pade 77:- " ... it is only when the proceeding is still 3

pending and not finally disposed of, that the Court has jurisdiction to grant extension of time ... So where a final decree terminating the action has Been passed, the Court has no power to extend the period Fixed therein . fo illustration of this point it is stated that when a decree has been passed directing a tenant to pay arreas of rent, the Court passing the decree has thereafter no power to grant extension of time for payment, because the Court has become functus officio and is not longer seized of the matter. And so it should be on the facts of this case. Once the court drew the decree on I st September, 1989, that was the end of the road. I have therefore to agree with Mr. Maira that even this application is incompetent and I do not find myself privileged to follow the previous examples. If I am held wrong in the foregoing, I still don't see the chances of the application even on merits. I will point out at this juncture that the basis of the suit was not the more act of dumping garbage at Tabata, rather, it was the methodology employed in that activity, •.vh ich methodology was potentially of not already hamardous. Para 4 of the Plaint stated, and l quote: 4. That the continued use of the Tabata area poses real danger to the Iives of the Plaintiffs and other users of the Port Access road (now Mandela Ex-press way) to wit (a) Pollution of the air (b) Heavy smoke blocks the motorists using the road and causes Motor accident s. (c) Unscrupulous traders scope the area and recover grain and other stuff which is unfit for human consumption. What happens, as stated in paragraph 3 of the Plaint, is that council agents upon tipping the garbage proceed to set it on fire. Heavy smoke rises there from and drifts across Mandela Express way before engulfing the Tabata residential suburb. As stat5ed at the beginning there was no defence to the suit, hence no part of the Plaint was controverted. But more specifically, the City Solicitors specifically, the City Solicitors have consistently acknowledged before this Court, as Mr. Kakoti did at the hearing of this application, that garbage dumping at Tabata was, indeed, a health hazard to the neighbourhood. The pollution and the danger posed by the activity are therefore acknowledged. In Mr. Kakoti's argument, however, it is a lesser evil to pollute and endanger lives at Tabata than to do so for the whole city, hence the supposed rational of the application. I will say at once that .I have never heard it anywhere for a public authority, or even an individual, to go to court land confidently seek for permission to pollute the environment and endanger people's lives, regardless of their number. Such wonders appear to be peculiarly Tanzanian, but I regret to say that it is not given to any court to grant such a prayer .Article 14 of our Constitution provides that every person has a right to live and to protection of his life by the society. It is therefore a contradiction in 4

terms and a denial of this basic right deliberately to expose anybody's life to danger or, what is eminently monstrous, to enlist the assistance of the Court in this infringement. But Mr. Kakoti's argument also seems to proceed on the premise that the council has statutory authority to take all measures as would induce to public health, which would includes the minimization of danger to public health. ln effect he seems to say that on injunction should therefore not issue to restrain the council in the exercise of its statutory authority. The argument is certainly attractive but it is not available as the council did not defend the suit and the injunction is already granted. But if it is necessary to respond to the point, I would observe that Mr. Kakoti did not seek to say, and I am not aware, that the council has no latitude in the exercise of its statutory authority. There is authority for the preposition that where a latitude, a discretion, is left to the person clothes with authority, that person must not, in exercising it, create a nuisance. In Metropolitan Asylum District v. Mi 11 ( 1981) 6 App.Case 1983, a local authority was given power to erect a smallpox hospital, the power being facultative and in no way compulsory. The local authority, in exercising it, erected a hospital in a place where the infection constituted a source of danger to the neighbour hood. They were restrained by injunction from continuing to use it so as any longer to constitute a source of danger. So apart from the fact that an injunction will issue to restrain a local authority from creation a nuisance in the exercise of its statutory authority, it deed not concur to me that the local authority can be heard to seek for and to obtain permission of the court to perpetuate the nuisance for whatever reason. There is another dimension to there proposition the criminal dimension. What the council has been doing at Tabata does not only constitute a tort but it is also criminal. Section 185 of the Penal Code makes if an offence punishable with imprisonment for any person voluntarily to vitiate the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbour hood or passing along a public way. This is the offence known as fouling air. The offence of obstructing a public way under S.229 of the Code could similarly be cited in this context. In coming to court seeking to be permitted to continue using the Tabata site the way it has been doing, the council is virtually asking for a licence to contravene the law. 1 am not aware of any authority, and none was cited to me, which authorizes a court of law to sanction criminal activity. I hold, on the contrary, that a court cannot authorize an offence. In bringing this application it was claimed that the council was seeking justice. l think I have sufficiently demonstrated that what was sought was permission to do a bit more of injustice. Justice in this case is wholly on the side of Tabata residents, and the council in effect came to Court to enlist the Court's assistance in perpetuating an injustice. Ironically, the duty of the Court is to protect the individual from the excesses of executive power and in this duty it should not be seen to fact or faulter. In the Roberts case cited earlier, lindlay M.R. had this to say, with which I agree: How is the Court to deal with a man who says, "] admit I have no right to do this, but I intend to go on doing it all the same"? If he is infringing the plaintiffs right, it is the duty of the Court to protect the plaintiff. I know of no duty of the Court which it is more important to observe, than its power of keeping public bodies execeed their rights they do so to the injury and oppression of private individuals, and those are entitled to be protected from injury arising from such operations of public bodies. 5

In sum, I am led to the inevitable conclusion that, even from the point of view of merits, it would be injudicious, illegal and oppi•essive to yield to this application and grant the extension prayed for. It certainly should be worrying to the City Fathers and probably puzzling to others as to what happens to the city garbage in the light of these pronouncements. I am personally fortunate inbeing spared of any tribulation. I think, with respect, that if the council, with all the willing contractors at Mbagala, cannot make up a track of 1.3 km. roughly 1,300 paces, in a day or two (and they have already had twelve days so far), people will have reason to ask whether there is a City Council worth the name. For all I have endeavoured to state, I dismiss the application with costs. Sgd. K. S. K. LUGAKINGIRA JUDGE DAR ES SALAAM TII 9 · September. 1 991 Mr. Kakoti for Applicant Mr. Maira for Respondent I Certify that it is a true copy of the Original. d½ !) \Im'l'i:H:Y EGISTRAR 6