MWACOTRA RULING 1 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 023497 OF 2024 (Arising From Misc. Commercial Application No. 6999 of 2024) MWACOTRA LIMITED……………………APPLICANT/DECRE HOLDER

VERSUS MGS MINING SERVICES LTD…………1ST RESPONDENT/JUDGEMENT DEBTOR JIUDING MINING INVESTMENT LTD…….2ND RESPONDENT/JUDGEMENT DEBTOR

RULING Date of Last Order: 24/10/2024 Date of Ruling: 22/11/2024 GONZI, J. The genesis of this matter is Commercial Case No. No. 4459 of 2024 which is still pending in this Court. While the main case was still pending the Applicant filed Misc. Commercial Application No. 6999 of 2024 between the Applicant and the Respondents herein whereby this Court, as per Hon. Agatho, J., on 5th July 2024, issued an injunctive order to the effect that: 1 “Temporary injunction is granted in favour of the Applicant, pending determination of the main suit”. Subsequent to the issuance of the temporary injunction in favour of the Applicant herein, and while the main case in respect of which the temporary injunction was issued was still pending, the Applicant suspected that the Respondents were not respecting the injunctive order and were continuing with the mining activities in the suit land. The Applicant therefore instituted Misc. Commercial Application No. 19970/2024 against the Respondents praying that: 1. That the Honourable Court be pleased to make a finding that there exists sufficient cause to the respondent liable for breach of lawful Court order issued on 5th July, 2024 by this Court.

2. That the Honourable Court be pleased to summon and arrest the principal officers of the respondents, one, Medard Daudi Mwijage, and Jun Li to show cause why they should not be committed to prison or order to pay fine for 2 intentional disobedience of the lawful order of this Court.

3. The Honourable Court be pleased to order on the request the immediate assignment of a Court broker with the police assistance for closure of the mine to ensure the cease of mining activities pending the final determination of the main suit. This assignment is the only way to verify and ensure the pure enactment of the judgment in the Court order removing the burden of proof from either party, as it is envisaged that the defendants will likely claim to have stopped the activities, while the applicant claims otherwise as deponed herein.

4. That, this Honourable Court be pleased to order restoration of the status quo before the breach of the Court order and the respondents and or their agents to stop operating mining activities pending determination of 3 the main suit.

5. That, Court be pleased to maintain the status quo pending hearing and the final determination of commercial case No. 4459 of 2024 before this Honourable Court.

6. Costs of this application to abide by the results; and 7. Any other orders this Honourable Court may deem fit to grant. After hearing the parties to the application for contempt of Court orders, this Court (Agatho,J.), on 6th September 2024, delivered its Ruling thereby dismissing the application for want of merits and it held that: “I have given thought to the content of paragraph 5 of the affidavit in support. Indeed, there is no evidence therein to prove that there are ongoing mining activities at the site. It is unclear as to why Mr. Farid Mohamed Sherally, the deponent of the affidavit in support of the application would go to the mining site, witnessed the respondents' disobedience to Court order dated 5th July 2024 with their continuing mining activities and he, Mr. 4 Sherally would not take a picture or video clip of these unlawful acts. His affidavit does not tell if at all the atmosphere at the mining site was terrifying that he feared his safety or he was anyhow prevented from taking picture of what was happening there. I am therefore far from being convinced with the averments that there is disobedience of the injunction order. Besides that, I ask myself, can this Court issue an order for appointment of Court broker and police assistance without evidence showing that the respondents have disobeyed the Court order? Since there is no evidence of disobedience to

Court order, to issue an order for appointment of the Court broker will be taking this Court into the realm of speculation. Another question is, can the powers granted to this Court under the provisions of Order XXXVII Rule 2(2), Sections 68(c), (e) and 95 of the CPC [Cap 33 R.E. 2002] be exercised without any sufficient cause or evidence of some sort? While I understand that there is possibility that the respondents are taking advantage of staying in the mining site to sneak into the mines and continue with mining activities. But this is nothing than speculation if not suspicion.” 5 Undeterred by the foregoing Ruling, the Applicant /Decree Holder has now filed this Application for execution of the Drawn Order contained in the Ruling on injunction, praying that: “This Court be pleased to appoint a Court Broker who shall ensure that the Respondents and or their agents acting on their behalf are not continuing with Mining activities in respect of the Mining Licence No. PML 0643GTA and PML 0644GTA formally known as licence no. ML332/2008 and ML33 3 pending determination of the main suit.” Since it is an application for Execution of the Court’s Drawn Order emanating from the Misc. Commercial Application No. 6999 of 2024, the Respondents were issued with Notices to show cause why the execution sought against them should not proceed. Both Respondents prayed to show cause by way of

affidavits in opposition to the Application. The Applicant upon being served with the affidavits of the respondents, opted not to file counter affidavits in response thereto and prayed for hearing to proceed without counter affidavits from the Applicant. The first Respondent filed an affidavit of Mr. Medard Daudi Mwijage, Principal Officer of the 1st Respondent. He stated that an order subject of 6 this Application was delivered on the 5th day of July, 2024 in favour of the Applicant. The said order, among other things, restrained the 1st Respondent from conducting mining activities in the area covered by PML No. 0643GTA and PML No. 0644GTA and that parties were bound to abide by it. He stated that in fact the 1st Respondent has abided by the court’s order by stopping operations in the subject matter. He added that the issued Court order was and is fully complied with by the 1st Respondent from the date of its delivery. Mr.Mwijage, added that on 19th day of August 2024, the Applicant filed Misc. Commercial App. No. 19970 of 2024 before this Court, which in its entirety its purpose was to satisfy the order of the 5th day of July 2024 and also the respondents be held liable for contempt of Court order following their disobedience to the Court order dated 5th day of July 2024 by continuing with their mining activities in the dispute area. He stated that after meritorious

determination of the said application the Court ruled in favour of the Respondents to the extent that there was no evidence to prove that the Respondents were continuing with mining activities even after the Court had issued the injunctive order on 5th July 2024. Hence, the said application was dismissed for lack of merit. 7 Mr. Mwijage stated that as a sign of ignoring, refusing to agree with, in total disobedience and as a way of appealing against the above ruling of this Honourable Court or entering this Court via a back door, the Applicant filed the application at hand, praying for this Honourable Court’s order to appoint a Court broker to satisfy or execute the order of 5th day July, 2024. He stated that the 1st Respondent is using the residence located at the surface land only for living and is doing nothing else in relation to mining activities in the said PML. The second Respondent also filed a Counter Affidavit of JUN LI, principal officer of the 2nd Respondent. He reiterated what was stated by the 1st Respondent and added that if the order sought in this application is granted, it will tantamount to the court now impliedly holding that the respondents have committed contempt of court for failure to comply with the Court order while those facts have never been proved before this Court. He added that if the order sought is granted, it may affect the respondents who only

reside at the mine site. He concluded by stating that the applicant is using the back door of this Court by opening the same application he has failed to prove. 8 As it has been said, Mr. Alex Mgongolwa, Learned Advocate for the Applicant opted not to file a counter affidavit in response to the affidavits of the respondents. The hearing of the application proceeded orally before the Court. Mr Alex Mgongolwa, Learned Advocate, acted for the Applicant. The First Respondent was represented by Mr. Stephen Mosha, Learned Advocate; while the 2nd Respondent was represented by Mr. Kalaka, Learned Advocate. I thank the learned Counsel for their useful arguments. Mr. Mgongolwa submitted that, the application at hand is one to appoint a Court broker so as to oversee implementation of the Court order of 5th July 2024 which was an order for injunction or preservative order in the main case which is pending in this Court. He submitted that the order was against the Respondents or their licensees from conducting mining activities in the prescribed land. He submitted that the basis of this application is to ensure that the Court order is executed. He argued that traditionally, Court Broker is required to file a report in Court so that the Court can be sure that what it ordered is implemented as it was directed. he emphasized that there is a need to respect Court orders. He argued that

the order sought is not only to protect the dignity of the Court and public 9 confidence, but also to promote obedience of the rules of procedure and justice to the parties. The duty to abide by Court orders is upon the Court Brokers who are authorized to practice in that area, not for advocates. Mr. Mgongolwa submitted that upon going through the affidavits showing cause, it becomes apparent that the respondents are admitting that they have implemented the court order. However, there is no Court broker who has filed such a report to that effect. Thus, he argued that the Court is not officially aware. In that case, he argued, there is a need for a Court broker to be appointed to certify that fact officially for the records of the court to be intact. He submitted that the court cannot rely on the report of advocates of the respondents. He added that his colleagues have misconceived the application at hand as if it were one for showing cause or contempt of Court order while the application is solely one for appointment of a Court broker to certify that the respondents have complied with the injunctive order of the Court. He submitted that such a certification should not come from the respondents themselves. He argued that the Respondents do not oppose the application at hand. He added that an application of this nature, prudently ought to have been entertained exparte as it is

not expected, in the interest of justice, that someone would oppose the 10 appointment of a neutral person to oversee implementation of the Court Order. An objection to appointment of a Court broker, is an objection to implementation of a lawful Court order, he argued. He prayed that a Court broker be appointed so as to bring a report to Court in writing as to the stage in implementation of the Court order. In reply, Mr. Mosha expressed his client’s total contest to the application. He adopted the affidavit of Mr. Medard Daud Mwijage, Principal Officer. Mr.Mosha argued that the application is un-maintainable for two reasons: The first reason is that the 1st respondent had and has complied with the Court’s order of 5th July. It is a cardinal rule that parties are bound by Court orders. He referred to undisputed contents of paragraph 4 of the affidavit of the first respondent which shows the total compliance on the part of the 1st respondent. Secondly, Mr.Mosha submitted that the application is barred by the order of the Court which emanates from an application for contempt of Court. He submitted that this was done in Misc. Comm. Application No.19970 of 2024 before Hon. Agatho, J. he added that in that 11 application, among other prayers, there was a prayer of appointment of Court broker and police to take charge of the suit premises. That application was dismissed for lack of

merit. It was his submission that the same prayer was brought and denied for the reasons that there was no sufficient reason to appoint a Court broker. Mr. Mosha submitted that paragraphs 5, 6 and 7 of the affidavit are straight on this. He argued that this application now comes as an alternative to the failed application No.111970/2024 or as a refusal to accept the ruling of this Court. It is in the nature of a review in disguise. He submitted that the application at hand makes the Court functus officio, as the Court had entertained the application and denied it. In absence of a review, the same application cannot be brought in this court. Mr.Mosha argued that the applicant is coming through the back door. He should have challenged the ruling of Hon. Agatho, J., before the Court of Appeal or seek a review in this court, but not to file a fresh application for the same relief as was refused. He prayed that the same be dismissed for being improperly before the Court. He also submitted that the application at hand has no supporting affidavit that could enable the Court to ascertain the necessity of appointing a Court broker. He argued that the necessity could be established by way of 12 an affidavit. He argued that the court cannot just appoint a court broker for no reason since Court brokers are paid. He argued that the Court saw it unnecessary to appoint one in the previous

application. He was of the firm view that before the Court appoints a Court broker at the costs of the parties, there must be sufficient facts to warrant the appointment. He therefore, reiterated that the application be dismissed with costs. For the 2nd Respondent, Mr. Kalaka, Learned Advocate, adopted an affidavit of Jun Lee, as part of his submissions. He submitted briefly that in paragraph 5 of the affidavit showing cause, the 2nd Respondent has stated categorically that he has complied with the Court’s order delivered on 5th July 2024. The order restricted the Respondents from engaging in any mining activities in the area. He argued that the Applicant filed application No. 19970/2024 in this Court seeking, inter alia, for the appointment of a Court broker to satisfy himself whether the Court order was being respected. He argued that looking at annexture JX 1 in paragraph 7 of the affidavit of the second respondent, this Court, after hearing the parties, dismissed the application. The Court saw no reason to grant the orders sought. The present application is, therefore, one seeking the same remedy earlier on sought and refused by this very Court. Mr.Kalaka submitted that the Applicant is seeking 13 to make it look like the respondents have continued to disobey the order of the Court, if that was the case, the applicant was required to show the necessity of appointment of the

Court broker to certify implementation of the Court orders. In the absence of an affidavit showing the need for appointment of the Court broker to satisfy himself on implementation of the order, the Court is left in the middle of nowhere. He prayed that as the applicant is trying to apply for the same relief that was earlier on refused, through the back door. Mr.Kalaka.Learned Counsel for the second Respondent, therefore, prayed that the Court finds that the application at hand is untenable. There is no necessity that makes the Court see it fit to appoint a Court broker. He prayed for dismissal of the application with costs. Mr. Mgongolwa made a brief rejoinder. He submitted that from the arguments of the respondents’ learned counsel, it is clear that they have no objection to the application and that they have un-equivocally said that they have complied with Court order. He submitted that Court procedures and practice would require that the same being a factual issue, should have been proved. He argued that the only reliable proof should be done by the Court through a court broker. The report of the Court broker is, therefore, necessary. He argued that if the Respondents have truly being complying 14 with the injunctive court order, why are they afraid of appointment of a Court broker to go and ascertain their compliance? He argued that that process would not anyhow be

prejudicial to the respondents. Mr. Mgongolwa submitted that there was an argument that this matter has been decided by Hon. Agatho,J., in Misc. Com. Application No.19970/2024. However, he argued, the issue before Hon. Agatho,J., was contemptuous proceedings. He submitted that even page 1 of that Ruling shows that the application was one for contempt of Court. He argued that his learned friends have avoided to tell this fact. He argued that in the last but one paragraph at page 8 of the Ruling, it shows that the Court’s order was one on contempt whereas the current proceedings have nothing to do with contempt of Court. In that ruling, contempt of Court was said to be a matter of evidence. The Court did not say that it had no power to appoint a Court broker. He therefore argued that the application at hand is very neutral. It seeks an appointment of a Court broker. The Court broker should bring a neutral report on compliance of the Court order. On functus officio, he argued that it does not apply as what is considered in functus officio is the substance of what was decided. He 15 argued that there was no similar application for appointment of a Court broker. Mr.Mgongolwa submitted that there is no conditional precedent before a court broker can be appointed since Court orders are implemented as such. He argued that there is equally no need for filing an affidavit to show

the need for compliance of Court order. There is no such legal requirement. The Court cannot require any evidence before the Court’s order is implemented. The Court order itself was open. It did not impose such requirements. He submitted that an application of this nature, the costs of the Court broker may be borne by either party. Costs should not be an impediment to realization of rights. The Applicant also may bear the costs of the Court broker. He reiterates that a Court broker should be appointed so that the same may file a report for the Court to satisfy itself on implementation of its orders. So submitted Mr. Mgongolwa, Learned Counsel. I have considered the argument as to whether in respect of the present application, the Court is functus officio. In the case of Tanzania Portland Cement PLC versus Lukas Mwakabanga [2024] TZHCLD 158 (Tanzlii), High Court, at page 4, Mlyambina, J., had this to say on functus officio: 16 “…It is crystal clear that the doctrine of “functus officio” restricts a judge or a magistrate or the arbitrator to perform a function which has been performed already. It means that when a matter is finally determined, it cannot be re-determined.” I have looked at what was prayed by the parties before Hon. Agatho, J., and the decision of this Court in that application. In Misc. Commercial Application No. 19970/2024 this Court (Agatho,J.) on 6th September

2024, delivered its Ruling in dismissing the application for contempt of Court for want of merits and held that: “I have given thought to the content of paragraph 5 of the affidavit in support. Indeed, there is no evidence therein to prove that there are ongoing mining activities at the site. It is unclear as to why Mr. Farid Mohamed Sherally, the deponent of the affidavit in support of the application would go to the mining site, witnessed the respondents' disobedience to Court order dated 5th July 2024 with their continuing mining activities and he, Mr. Sherally would not take a picture or video clip of these unlawful acts. His affidavit does not tell if at all the atmosphere at the mining site was terrifying that he feared his safety or he was anyhow prevented 17 from taking picture of what was happening there. I am therefore far from being convinced with the averments that there is disobedience of the injunction order. Besides that, I ask myself, can this Court issue an order for appointment of Court broker and police assistance without evidence showing that the respondents have disobeyed the Court order? Since there is no evidence of disobedience to Court order, to issue an order for appointment of the Court broker will be taking this Court into the realm of speculation. Another question is, can the powers granted to this Court under the provisions of Order XXXVII Rule

2(2), Sections 68(c), (e) and 95 of the CPC [Cap 33 R.E. 2002] be exercised without any sufficient cause or evidence of some sort? While I understand that there is possibility that the respondents are taking advantage of staying in the mining site to sneak into the mines and continue with mining activities. But this is nothing than speculation if not suspicion.” It is obvious that the Court in the above ruling dealt with the prayer of appointment of a Court broker. It held “Besides that, I ask myself, can this Court issue an order for appointment of Court broker and police 18 assistance without evidence showing that the respondents have disobeyed the Court order?” Then, the Court declined to grant the prayer. In the present application the applicant has once again prayed for an Order that: “This Court be pleased to appoint a Court Broker who shall ensure that the Respondents and or their agents acting on their behalf are not continuing with Mining activities in respect of the Mining Licence No. PML 0643GTA and PML 0644GTA formally known as licence no. ML332/2008 and ML33 3 pending determination of the main suit.” The same prayer that was raised, argued and determined before Hon. Agatho,J., has now been raised in this application before me in the same matter between the same parties. I am convinced, therefore, that I am functus officio and thus without jurisdiction to grant the

same prayer specifically denied by this very court in the previous matter between the same parties relating to the same dispute. Such a move is also not allowed under the doctrines of res judicata and issue estoppel. In Issa Athumani Tojo Versus The Republic, Criminal Appeal No.54 of 1996, the Court of 19 Appeal of Tanzania at page 7, quoted with approval the holding in Regina v Hogan, [1974] 1 Q. B. 398, at P. 401 that: “Issue estoppel can be said to exist when there is a judicial establishment of a proposition of law or fact between parties to earlier litigation and when the same question arises in later litigation between the same parties. In the later litigation the established proposition is treated as conclusive between those same parties. It can also be described as a situation when, between the same parties to current litigation, there has been an issue or issues distinctly raised and found in earlier litigation between the same parties.” There is also another issue, the Applicant has not filed a counter affidavit. It means that all the facts contained in the affidavits showing case filed by the Respondents are not disputed by the Applicant. They are admitted. in Fatuma Ally Mohamed vs Mohamed Salehe [2020] TZHCLand 2320 (TANZLII) at page 2, I quote: 20 “The position of the law on failure to file a counter affidavit it is settled. The Respondent is deemed to have not

contested on the factuality of the affidavit. Now, if all what is stated by the Respondents in their affidavits showing cause, is admitted by the Applicant, it means that there is no need for the Court to appoint a Court broker to go and ascertain Respondents’ compliance with the Court order while it is accepted that the respondents are actually complying with the Court order as stated in their affidavits to which there is no counter affidavit in opposition from the Applicant. If there is no dispute that the respondents are complying with the Court order as stated in their affidavits, there is no basis for the Court to appoint a Court broker to go and ascertain on compliance or non-compliance of the Court’s order while it is not disputed by both parties in this case that there is a compliance as stated in the affidavits by the Respondents. I therefore find the application without merits and I do hereby dismiss it with costs. It is so ordered. A. H. GONZI

JUDGE 22/11/2024 21