THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 444 OF 2001
[Arising from Misc. Application No. 39 of 2001]
BAT (U) LTD ] APPLICANT
VERSUS
THE ENVIRONMENT ACTION ]
NETWORK LTD ] RESPONDENT
BEFORE: - HON THE PRINCIPAL JUDGE - MR. JUSTICE J.H. NTABGOBA
RULING
This is a ruling on the application filed and argued on behalf
of the British American Tobacco Uganda, Ltd. The application
brought pursuant to Order 1 Rule 10 (2) of the Civil Procedure
Rules and Rules 5 and 7 of the Fundamental Rights and Freedoms
(Enforcement Procedure) Rules S.1 No. 26 of 1992 as well as order
48 of the Civil Procedure Rules, seeks orders that: -
a) the applicant be added as respondent to Miscellaneous Application
No. 39 of 2001, and
b) the costs of the application be provided for.
The grounds relied on by the applicant are as follows; -
1. That the respondent has filed Miscellaneous Application
No. 39 of 2001 under Article 50 (1) and (2) of the Constitution
seeking for declarations that smoking in Public places is a violation
of the rights of non-smoking members of the Public and that smoking
in Public constitutes an offence.
2. That the applicant was not made a party to the said application.
3. That the orders sought by the respondent in the said application
will adversely affect the applicant.
4. That the applicant's presence in the application will be
necessary in order for Court to effectually and completely adjudicate
upon and settle all questions involved in the application.
The B.A.T. application was supported by the affidavit of one
Richard Wejuli-Wabwire who deponed that he is an advocate of
this Court and the Company Secretary of the applicant Company.
His affidavit deponed to the 4 grounds enumerated above and to
nothing else in addition.
In reply Mr. Phillip Karugaba who claims to be one of the
applicant's members deponed that: -
1. That the application No 39 of 2001 seeks only to protect
non-smoking members of the Public especially vulnerable groups
like women, children and workers in hospitality industry from
the proven dangers of second hand smoke and passive smoking;
2. That the focus of the main application is to control only
the place of consumption of Tobacco Products and is not targeted
against B.A.T., the applicant, its manufacturing, distribution
or retail processes, or against its particular Customers.
3. That it is far-fetched to believe that if the respondent
is successful in application 39 of 2001, B.A.T., the applicant
will suffer gross financial consequences or at all;
4. That the two respondents in application 39 of 2001 do not
contest the science on the dangers of second hand smoke and are
according to their affidavits in reply already working on measures
to address the problem.
5. That there is nothing in the affidavit of the applicant
to suggest that it contests the scientific basis on which the
respondent seeks its relief.
There were many other, deponements in Phillip Karugaba's affidavit
including that: -
That there are other manufacturers, importers, distributors and
retailers who may all seek to be joined to the main application,
if the application is to be believed and becomes successful.
I must confess, I do not grasp the relevance of this paragraph
9 of Phillip Karugaba's affidavit because, even if the other
manufacturers, importers, distributors and retailers, in Uganda
joined in the application, Court would be able to entertain them.
Except for this paragraph, however, the rest of the deponements
of Phillip Karugaba outlined in the paragraphs quoted above are,
to a large extent true. Application No. 39 of 2001 is not about
declarations against the manufacture, importation, distribution
and retailing of Tobacco in Uganda. As Karugaba deponed, the
thrust of the application is against smoking in Public places
and, if you like, it is against those who smoke in the Public
so as to injure or jeopardize the health of non-smokers like
children and other innocent passive smokers. My reading of the
application is that it seeks provision by NEMA and Government
of places for smokers separate from those of non-smokers. This
is acknowledged by the respondent when they say that they are
still working on the modalities of redressing the situation,
and that the application is premature.
Having said that, I should make it clear that the other declarations
and decisions sought in application No. 39 of 2001, namely a
declaration that smoking in Public is a Criminal offence contrary
to Sections 156 and 172, are declarations which this Court would
not be competent to make. A Criminal offence is a creature of
Statute and therefore Court cannot declare an act Criminal unless
a statute makes it so. I agree reliefs sought in paragraphs 3,
4 and 5 of the application must be of concern to B.A.T. They
are: -
"3. A declaration that smoking in a Public place constitutes
an offence under Ss. 156 and 173 of the Penal Code;
"4 An order that the 1st respondent takes steps to ensure
the prosecution of persons committing offences under Sections
156 and 172 of the Penal Code;
"5 An order that the 2nd respondent take the necessary
steps to ensure the enjoyment by the Uganda Public of their right
to a clean and healthy environment".
As I told Counsel at the hearing a Criminal offence is a creature
of a Statute. Courts do not create criminal offences and therefore
it would not be within the competence of this Court to decide
that smoking in Public places is a crime, as indeed, it is not
competent for the Court to order the prosecution of persons who
smoke in Public. The power to prosecute vests in the Director
of Public Prosecution who is not subject to Court orders in his
decision to prosecute or not to prosecute.
Having then declined to adjudicate on the issue of criminality,
my view is that the concerns of B.A.T. are no longer valid or
credible. It is for that reason that I decided not to accommodate
the application of B.A.T. to be joined as respondents in Application
No. 39 of 2001. And having allayed the applicant's fears that
I would decline to decide on the issue of criminality of smoking
in Public places, Counsel for B.A.T. nevertheless forged ahead
to argue the issues that did not concern his client. It is for
that reason that in dismissing its application I awarded costs
against it.
The above are my reasons for dismissing this application and
for the award of costs that I made.
J.H. NTABGOBA
PRINCIPAL JUDGE |
