Environmental Case Law Index

This Supreme Court case revolved around a compromise agreement between the fourth respondent and the appellant. The fourth respondent, a registered mining company, was going bankrupt and its management was entrusted to the liquidator. The liquidator then granted the appellant the right to treat stockpiles of ore at the mine to raise money to pay the creditors. The appellant then attempted to have all mining activities registered under its name. In doing so, the appellant misrepresented the facts to the third respondents without involving the fourth respondent stating that it paid the creditors their dues and as such, it was entitled to have mining activities registered under its name. However, the fourth respondent succeeded in establishing that the appellant was lying. This led the third respondent to cancel the appellant’s falsely obtained mineral rights. The High Court agreed with the respondents that the appellant's mineral rights over the plot in dispute were justifiably cancelled. The appellant felt aggrieved by the court’s judgement and appealed to the Supreme Court.

The issue for determination was whether the appellant was allowed to register mining rights under its name and whether the third respondent erred in cancelling its rights.

The Supreme Court held that agreements cannot be valid if consent was obtained through misrepresentation. Consequently, it found that the appellant was unjustified and supported the third respondent’s decision to cancel the falsely obtained rights.

This High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.

Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.

The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions.  The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.

This was an appeal to the High Court involving an appellant who was co-charged for contravening Section 6(1)(a)(i) read with (4) of Precious Stones Order of 1970 (“order”) as well as theft. In the case, the appellant allegedly bought diamonds with money that he had stolen from the bank account of his employer. The Magistrate Court acquitted the appellant and the co-accused of the charge of contravening the order. However, the appellant was convicted and sentenced for theft.  The appellant’s defence was that he withdrew the money for office use, but that it was then stolen from his wardrobe by an unknown person.

On appeal, the first issue on trial was whether the magistrate erred in finding that the explanation given by the appellant was far from being reasonably accurate. The second was whether there was enough evidence to establish the appellant’s guilt. 

The High Court held that the prosecution showed that the appellant withdrew the amount of money alleged to have been stolen from the bank. It found that the conviction by the lower court was well based on (1) the remainder of the money that was unearthed from the appellant’s house; (2) the uncut diamond that was recovered from the appellant; (3) further evidence. The Magistrate Court’s decision was therefore upheld and the appeal dismissed.

This was an appeal against the decision of the Magistrates Court, dismissing the appellant’s application for bail. The appellant was arrested for possessing gold without a licence.
At the initial bail hearing, the Magistrate questioned the issue of abscondment and held that the appellant was unlikely to stand trial for various reasons such as him being a “a man of means” who “could use that status to abscond”. The magistrate further held that the stipulated mandatory penalty “could certainly ignite motives of abscondment” and that “the onus was now on the accused to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice”.
The court, therefore, had to decide whether the magistrate’s approach to onus was erroneous in light of the evidence placed before him.
The court held that the magistrate a quo did not misdirect himself as to the approach to follow but had failed to exercise due diligence. He made unfounded allegations which did not indicate whether the appellant was likely to abscond for those reasons. He had also left a lot of issues open ended such as the severity of the penalty, the issue of passports and had ultimately failed to assess the strength of the evidence forwarded by the appellant.
Therefore, the magistrate a quo misdirected himself his evaluation of the likelihood of abscondment by the appellant and the evidence did not indicate that the appellant would abscond. Accordingly, his decision to decline bail was set aside.

This was an application seeking an order setting aside the sale of granite blocks to the second respondent. The application also sought to compel the first respondent to offer the blocks to the applicant in terms of a ‘right of first refusal’ agreement between them. The application was filed following reception of information that the first respondent was moving granite after a sale to the second respondent without their knowledge.
The application was brought on an urgent basis by the applicant.

The court had to determine whether the matter was urgent and whether the applicant had a claim against the second respondent for granite sold and whether to interdict further movement of the granite in question.

The court held that at the time of the hearing, the granite had not been removed from Zimbabwe and if the applicant was entitled to protection of its rights, it was the duty of the court to ensure that the matter was determined urgently.

It also held that any claim that the applicant had to the right of first refusal would depend on whether it can show that the second respondent was aware or ought to have been aware of its prior right or claim to the stone. The claim fell away as the conduct of the second respondent did not show any mala fide intention.

The interdict application was thus denied because the applicant had no rights to enforce against the second respondent. 

The court considered an application for an interdict to restrain the respondents from interfering with its mining operations. In response the respondents filed a counter-application to stop the applicant from mining on its registered mining claim.

The applicant contended that the respondents illegally encroached on its claims and was effectively stealing ore. The respondents alleged that it was the applicant who, through the shafts which were registered in their name, entered their area of activity and stole ore from them. Both prayed that the court interdict the other from accessing the claim and interfering with their mining activities.

The court in considering both applications, held that for an interdict to be granted, the right which was the subject matter of the main action and which was to be protected by means of interim relief must be clear or prima facie established. The court stated that if the right was only prima facie established, there should be a well-grounded apprehension of irreparable harm if the interdict was not granted and that proof of harm ultimately succeeded in establishing the right.

The court found that the applicant led no evidence to show that it suffered any harm let alone irreparable harm. The respondents on the other hand, satisfied the court that the disputed claim was registered in its name. The court, therefore, found that the applicant had no clear right to the claim. Accordingly, the application was dismissed with costs and the counter-application was upheld.

Revenue and public finance – income tax – deduction – assessed loss – special mining lease – assessed loss may only be deducted once and not carried forward

This was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee. 

The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
 
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.

Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.

This was a review in the High Court concerning two accused persons who had been charged with and convicted for contravening s 368(2) as read with s 368 (4) of the Mines and Minerals Act [Chapter 21:05] for prospecting for minerals when they were not holders of licences or permits.

The issue facing the court was to determine whether the accused persons, being widows with minor children, were acting under special circumstances, as the trial magistrate had found. The court held that the learned trial magistrate completely misdirected himself in holding that the circumstances of the accused persons amounted to special circumstances, as there was nothing out of the ordinary about being a widow with minor children to look after. The court also held that the learned magistrate’s line of reasoning was faulty in calling that widows and widowers with minor children should be excused when they break the law so as to fend for the minor children, since it was a recipe for anarchy as there were so many widows and widowers in the country.

Consequently, the sentence imposed by the trial magistrate was not allowed to stand and, therefore, set aside. The matter was sent back to the trial court to recall the two accused persons and impose the sentence of two years imprisonment as mandated by law. Since both accused persons had already served four months imprisonment in the form of community service, they were to serve an effective term of 20 months imprisonment.

The court considered an application to review a sentence imposed on the accused. The accused was charged with contravening s 3(1) of the Gold Trade Act by virtue of being found in possession of 0.62g of gold valued at $20.62. The accused pleaded guilty and was convicted. The lower court imposed a short sentence whereas as the act stipulated of not less than 5 years for persons found guilty of the offence, unless special circumstances existed showing cause why the mandatory sentence should not be imposed. The magistrate relied on special circumstances pleaded in mitigation.

The special circumstances referred to by the accused were that his wife was in hospital and was going to undergo surgery and that he committed the offence to raise hospital fees and money for the surgery 

The court found that these were not special circumstances as envisaged by the act but that what the accused relied on was a common occurrence and did not entail that persons in such situations ought to resort to crime. The court held further, that his illegal action was not a solution to this problem nor would $20 be enough to pay the hospital bills.  

The court held that there was no reason why the mandatory sentence should not be imposed. Accordingly, the court set aside the sentence imposed by the trial court and remitted it back to impose the mandatory sentence. 

The case was in the High Court where the applicant sought to interdict the respondent from entering its diamond processing plant and from coming within 100 meters of the plant because the respondent was interfering with its operations.

The issue before the court was to determine if indeed the respondent interfered with the operations of the respondent. In this case, the judge accepted that the applicant had shown prima facie right over the diamond plant, as it set up the plant which it had been mining and operating from for three years. The court held that the right to mine there would have been in doubt but that did not disentitle the applicant to peaceful and undisturbed possession.

The judge also agreed with counsel for the applicant that the respondent had transgressed or disparaged the existing state of affairs by constantly forcing himself onto the plant claiming ownership of same and even attempting to take over the applicant’s employees which amounted to an infringement of the applicant’s rights. The court held that there could be no other remedy except to prevent the respondent from continuing with his unwarranted misadventures at the plant.

Consequently, the respondent, his agents and anyone acting on his instructions were permanently interdicted from entering the applicant’s diamond processing plant or coming within 100 meters of the said plant. The respondent was ordered to bear the costs of the application.

The court considered an application for the granting of an order to evict the respondent pending the hearing of an appeal. The applicant was the registered title holder of four mineral claims. It instituted action seeking an eviction of the respondent from its registered claims, which was subsequently granted. The dispute between the parties related to ownership and mining claims of the minerals. It was not disputed that the mineral claims were registered in the name of the applicant. 

The court considered the parties’ rights of ownership of the minerals. These rights were governed by s 172 of the Mines and Minerals Act, which stated that every holder of a registered block of claim would possess the exclusive right of mining or deposit of the mineral in respect of which the block was registered which occurred within the vertical limits of his block. The court found that the applicant had the exclusive right as the registered holder of the claim. 

The court found that to suspend the eviction pending the appeal would entitle the respondent to continue mining, which was an untenable situation and would create a judicial anomaly where the court became a party to the respondent’s unlawful conduct. Accordingly, the court granted the application. 

The court considered a final appeal against a decision by the Court of Appeal to dismiss the plaintiff’s first appeal against the judgement of the Trial Court. 

The origin of this matter was a writ of summons issued to the respondent for payment of money that was deposited as compensation by a third party for their mining operations. The respondent then filed a cross-action seeking a declaration that he was entitled to the compensation and an injunction restraining the appellant’s from claiming the money. 

The suits were consolidated and the trial judge gave judgement in favor of the respondent after having found that land used for the third party’s mining operations belonged to him, not the appellant. The appellant then filed an appeal which was dismissed by the Court of Appeal. Still dissatisfied, the appellant filed this final appeal calling upon the Supreme Court to review the lower court’s decision and to finally determine the matter.

The court found that the lower court adequately considered all the relevant issues. It further found that the High Court of Imo State had requisite jurisdiction to hear the case. The court noted that the appellant stretched the meaning of s 7(1)(p) of Decree No. 60 of 199, beyond reasonable limit by purporting that it ousted the High Court’s jurisdiction in matters of compensating land owners.  

The court concluded that the appeal was without merit and deserving of punitive costs. The appeal was dismissed.