20121107 TZCA Dar es Salaam

.- /).1'..,/.,;t::fJ r7'1 &--I;- # ../) A-7?1 /J-t;,,G-.•.f: - · IN THE COURT OF APPEAL OF TANZANIA Ai DAR ES SALAAM {CORAM: l<IMARO, J.A., MASSATI, J.A., And MUSSA, J.A.) CIVIL APPEAL NO. 57 OF 2011 CHINA HENAN INTERNATIONAL .CO-OPERATION GROUP CO. LTD ....................................... APPELLANT VERSUS . SALVAND 1<.A. RWEGASIRA ........... ~ ................................ RESPONDENT (Appeal against the judgment and decree of the High Court of Tanzania at Bukoba) (Luanda, J.) .. . ·, dated the 7 th day of December, _2004 in Civil Case No. 5 of 2003 ·' . l . JUDGMENT OF THE COURT 23 rd October, 2012 & 20 November, 2012 MASSATI, J.A.: The appellant, CHINA HANAN INTERNATIONAL COOPERATION GROUP Co. LTD (CHICO) was awarded a tender by TAN ROADS, a Tanzania government agency for road works, for the construction of MUTUKULA - MUHUTWE road, in Kagera Region in 2001. For the execution of these works, CHICO needed some construction materials. · During the bidding process, CHICO received among other ter1der documents1 a Material~.. Re.port which !dentified the type, 2 ,. qua·lity and site from which suitable materials could be obtained. CHICO believed that this area was offered by the government for it to excavate some road construction materials. When she began to collect those materials, the respondent, SALVAND K.A. RWEGASIRA (RWEGASIRA) showed up, and claimed that the area from which CHICO was excavating materials for road construction was legally his. This was followed by· some negotiations between the parties. At . some stage the understanding went sour. So, in October, 2003 Rwegasira filed a suit in the High Court at Bukoba claiming for compensation of Tshs. 1,374,600,000/= and Tshs. 10;000,000/= by way of general damages, and some other ancillary reliefs not relevant for the purposes of this appeal. After a full hearing, the High Court (Luanda, J) (as he then · was) entered judgment for Rwegasira and awarded him Tshs. 974,000,000/= as compensation plus interests "as prayed in the plaint" but dismissed the claim for general damages as "nothing has been said about it. ..... " CHICO was aggrieved, and has filed the present appeal. 1 ·~ . · At the hearing of the appeal, Mr. Wilson Ogunde, learned c·ounsel appeared. for the appellant and Mr. Paschal Kamala r I ijJ . . . represented the respondent. t Six grounds of appeal were argued by counsel in their written submissions and orally in Court. In the first ground, Mr. Ogunde complained that the trial judge misdirected himself in failing to hold that the dispute plot was · designated as a quarry site by the Ministry of Works for CHICO's use prior to the purported grant of primary mining licences to the respondent. In his written submission, the learned counsel has relied on the materials report (Exh -D2) and concluded that the disputed area was ! designated as a quarry site by the Ministry of Works since 1996 . . \ Mr. Karnala's response was that designating a plot as a quarry site does not confer an uncontrolled or unregulated right to commence mining. He went on to submit that as a matter of law ~ven the Ministry or Works required a licence to mine on the suit plot 4 from the Commissioner of Mines; and that this was not followed in · ·. this case. The issue therefore is whether the land in ·dispute was. designated as a quarry by the Ministry of Works? The answer to the above issue partly lies in the testimony of 'PW3. He told the trial court that the plot in dispute was allocated to the respondent after making the application to the Commissioner of .,Mines. When the Ministry of Works approached the Zonal. Mining Office they advised them to take the next unoccupied area. Such place was located by the Ministry of Works who were offered two licences. TANROADS were also offered three licences in the area. So, if the Ministry of Works had located/designated any area as a I ! . quarry, it was not the plots. in dispute. i , I Mr. Kamala's submission that, in law every person, even the ; ! i ,. :i Ministry of Works had to obtain a mining licence to mine on the suit . plot, is. based partly on the above analysis, and partly on part of PW3's testimony, that: ''Prior to the new law of 1998 Tanroads could take ,naterials from any where and J/_'' 'l ;:, ·- .. - 5. ',f." • /..:.,· ~ ,: use it but after the enactment of new law 1998 one had to possess a licence whether Ujenzi or any Government agency." Here, PW3 was testifying on a matter of law, and we are not· sure whether he was competent enough to do so. At least, he did nor' refer to the court, which section of the new law imposes such restrictions even to government institutions. On our part, we are aware ·that unde,~ section 25 of the Highway Act, (Cap 167 RE 2002) a public road authority is allowed, with prior written notice to the owner, to enter into any land of any person not in the immediate neighbourhood of a dwelling house, and dig a quarry, sand or carry any stones, earth, gravel or other materials that may be required for the purposes of construction of a highway. There is nothing in the Mining Act which repeals or amends this provision. In our view, that is still the position of the law. However, as there is no evidence nor a· suggestion in this case, that the Ministry of Works designated the dispute plot under the Highway Act, we need not say more on this. Apart from PW3, it was the evidence of PW1, that he was the : owner of three primary mining licences No. 0001948, 0001949 and ~-~_•,r.;,~ ., Jr<- - . i:~.E~ .i: ~ · ""' 6 tit -t· fl { ~- ' .,. 0001950. Under section 68(3) of the Mining Act, a primary mining i" / ,11 licence confers exclusive right to the holder thereof to· carry on • mining operations in the area, subject to the provisions of th.e Act · and its regulations. DW1 told the trial court that he was shown the · dispute plot by Ministry of Works officials, but, it is not clear who are those officials and when did they do so. As for exhibit D2, it is clear that it was just issued as a guide and its contents is nothing more than an analysis of the materials available· at the site. It has no probative value as to the ownership of the site. In view of the clear position of the law and the evidence on record, we cannot fault the trial court's finding that the plot in disput.e was neither designated nor allocated to the. Ministry· of Works, as a quarry for the appellant's use. • Consequently, we find no. nierit in this ground of appeal. In the second ground of appeal, CHI.CO has taken up the issue of the validity of the respondent's Primary mining licenses. 7 Mr. Ogunde submitted that no primary mining licenses could : ,,; have been issued before getting Primary Prospecting licenses in terms of section 68(1) of the Mining Act. Therefore, according to him, the respondent's licenses were void and of no effect. On his part, Mr. Kamala urged us to reject this ground because it was neither pleaded nor argued and decided in the lower court. This ground should not detain us.· First, as Mr. Kamala ·has ' .. I ' . submitted the issue was neither pleaded nor argued in the trial court. r I l This is the more so, because the question whether or not the primary mining licenses were valid, required more than a consideration of the law. The subject required an examination of the whole process, ,: because according to the law, the Commissioner of Mines would only . issue the primary mining licenses after being satisfied that the conditions for their grant were fulfilled. Whether or not this was so needed evidence. Since this was neither pleaded nor in issue, no party could bring in and did not infact produce any to prove one way· or the other. So it is neither desirable nor legitimate for us at this stage to inquire into that issue (See S.N. SHAH v C.M. PATEL AND OTHERS (1961) EA 397.) We could, however have done so, if the 8 . . . . . . · trial court had not decided on it but there was some evidence on . record, and the parties had argued it (See ODD 'JOBS v MUBIA . (1910) EA. 476. As urged by the respondent, we reject this ground of appeal. The next ground of appeal is that it was wrori'g for the trial court to have failed to hold that the respondent could not have · e).(ercised his mining rights without the consent of the Minister / responsible for mining. · . . It was contended by counsel that since the area in. question ·was designated as a quarry by the Ministry of Works, no mining could· proceed without the_ consent of the Minister of Mining in terms of. ,section 95(1) (a) (i) and (iii) of the Mining Act. He also referred to Exh D2. The respondent submitted that, again, this ground of appeal did neither arise from the pleadings nor tried by the trial court. In our view, Mr. Kamala's view is not correct. This matter was raised by the appellant in its Written statement of Defence, as a Preliminary Objection. After it was argued, the trial court declined to 9 'decide on it on the ground . that it required an examination of . . . >• . · ·evidence. After the trial, the point was not dealt with in the trial f · court's judgment. The trial court had a duty to resolve it and to the · · extent that the matter was left unresolved, the trial court werit into error. But, as a first appeal, this Court has powers to do what the trial court ought to have done, under section 4(2) of the Appellate Jurisdiction Act; given the evidence on record and the law. . . This issue is closely tied to the first issue, in which we found that there was no evidence that the plot in dispute was designated by the Ministry of Works, as a quarry. Jhis would have been ~ufficient to dispose of the matter; but for the sake of completeness, . we would also consider the scope of section 95(i) (a) (i) and (iii) of the Mining Act, relied on by Mr. Ogunde. Section 95(1) of the Mining Act provides:- 95(1) The holder of a Mineral Right should not exercise any of his rights· under his licence under this Act and (a) except with the written consent of ::ft: ...,; :,_ .1 - . . 10 ?/,-- the responsible minister, in respect of_ (i) any/and dedicated or set apartfor any public purposes other than mining. /~1 . . . ( /I,,, ..•...•....•.•...••....•••.•.••.•••.•••..••••.••••••.•• (iii) any Jarid whichJs the site of or within 100 metres Of any buildin~ reservoir or dam owned by the · Government In the present case, there is no evidence that the land in dispute was dedicated for any public purposes other than mining. If anything, the appellant seems to suggest that it was set aside as a . . . . . q4arry by the Ministry of Works above, - which as seen above; is not supported by the evidence, and in any case in our view, that is a·· mining activity. Similarly, there is no evidence that the land in dispute is within a 100 meters from a building, reservoir or dam owned by the Government. So, section 95(1) (a)(i) and (iii) of the · Mining Act was quoted out of context and is not applicable. This ground is also dismissed. 11 The fourth ground of appeal is that the trial court failed to find that the appellant and the respondent jointly worked in the disputed plot and so the respondent should be estopped from complaining. Mr. Ogunde referred to us the evidence of DWl and Exh D3 in support of his arguments. He submitted that although Exh D3 is· an agreement between the appellant and MARK & GENERAL AGENCIES LTD the respondent was the brain of the company, and so his acts Ii should be attributed to those of the company; especially so, as in the ' duration of the agreement the respondent never disclosed .his ownership of the plot in dispute. On his part, Mr. Kamala, submitted that the agreement (Exh D3) did not involve any mining or quarry activities, the subject of the· suit, and that there is evidence that the appellant's. illegal activities began when the respondent was in remand prison on a murder charge; so he could not stop or prevent CHICO from excavating the stones and pebbles. 12 The resolution to · this issue revolves around the true construction of the· agreement (Exh D3). This agreement was between the appellant and MARK AND. GENERAL AGENCIES LTD. This is a limited liability company, with a· separate legal entity from its memb~rs or directors. The agreement was signed on 11/7/2001 but the respondent alleged in paragraph 5 of his plaint that the cause of · pc;tian arose in May, 2001, much earlier than the signing of the agreement. There is no clause in the agreement which ratifies what the _appellant may have done piror · to the execution of the agreement. . According to clause l of the agreement the contracted . services were for PART B (i.e MARK AND · GENERAL SERVICES AGENCIES LTD) "to provide drilling, blasting ahd general . management of PART A's quarry situated at Kyaka, - Rukurugo, Bujungo and Ruhanga, to produce materials for PART A's crushing plant." As we see it, tl1e position of MARK AND GENERAL AGENCIES LTD, was therefore that of an independent contractor, not a partner with CHICO, or its employee. The company was to carry out its duties at PART B managing PART A's quarry at Kyaka, Rukurugo, 13 . Bujungo and Ruhanga. Hut the suit premises are at Rubale. No clear evidence was forthcoming to show whether these are · the same places. That appears to be more confusing if the evidence of PW3 is taken into consideration. According to him, the Ministry of Works · · and Tanroads also had plots near the respondent's at Kyaka. · Furthermore, according to the· respondent, the contract was not . executed. This was not refuted by the appellant at the trial. On the · · facts, we think that the cases cited to us by Mr. Ogunde likening ·the actions of MARK AND GENERAL SERVICES AGENCIES LTD, a party to the agreement (Exh D3) with those of its Managin·g Director, are of very little if any, relevancy at all, to those ·in the present case .. we·.· find ·no justification in the present case for lifting the· company's . · cor}Jorate veil. We ·are not therefore persuaded that there is any substance in this ground of appeal. The basis of the fifth ground of appeal is that the valuation repbrt (Exh P2) was prepared by an unqualified. person; unqualified because he was not a "land valuer" but merely. "a surveyor;" and secondly that he had no practicing certificate in force at the time he prepared the report. So, argued, Mr. Oguride, the report was invalid 14 ·. Mr. Kamala's . short answer was that this ground . is not supported by ·· M> the evidence on record. Unfortunately, Mr. Ogunde has not referred to us any authority or provision of the law for the statement that a report issued by a registered surveyor Who has not renewed his practicing certificate is void. We have studied the Professional Surveyors (Registration) Act (Cap. 270). · Unlike in legislations governing other professions like advocates, there. is no specific provision in thatAct which deals with · _practicing certificates and the consequences of not having one in force.· By analogy, let us take as an example, the Advocates Act (Cap. 341). · Section 34 of the Act, requires the Registrar to issue . . practicing certificates to advocates. Section 38(2) prescribes the duration of each certificate and s 39(1) (b) prescribes that a valid · practicing certificate was a precondition for one to be qualified tb act as an advocate. There are no similar provisions in the Professional Surveyors (Registration) Act. It is not therefore clear from the face of the practicing certificate (Exh P1), under which provision of the law it is issued. We are of the considered view however, and are satisfied that once a surveyor is registered under section 9(1) of that 15 Act and is not suspended or disqualified under section 27 of the Act· he is entitled to practice as a surveyor. That section provides: 9(1) Subject to any regulations made under section 27 providing for the suspension or cancellation of the registration of a professional surveyor✓ a person shall be entitled on making an application to . the council in the prescribed manner✓ to be registered under this section and to offer his services for profit or gain if . ,, he IS. .......... . According to Exh P1, PW2 was a fully Registered Surveyor, and therefore qualified to testify as a land surveyor. Equally sad, is that, Mr. Ogunde did not assist the Court when he failed to explain .why he thought PW2 could not perform the services of a land valuer. A valuer is a person whose job is to estimate how much property, land etc, is worth (Oxford Advanced Learner's Dictionary). According to Exh P1, PW2 was competent to practice as a land economy surveyor. Since Mr. Ogunde's assertion is a bare denial without any reason~ to support why he thought so, and since there was no evidence on 16 record to refute PW2's title as an expert, and since there is no evidence that he was suspended or that his registration was cancelled under the law, we agree with the trial judge that PW2 was competent to testify. His evidence was therefore lawfully received. ,We also dismiss this ground of appeal. But admissibility of evidence is one thing, the value and weight 'to. be attached to it is a different thing. Whether Exh Pl has / sufficient weight and probative value is the subject of discussion of ·_ the last ground of appeal. The last ground gives rise to the issue whether the respondent had proved the special damages pleaded and granted by the trial · court. Generally the award of damages is intended to return a person· injured by a wrongful act of another, to the ·position he was in, prior to the alleged wrong in monetary terms. In law, there are two broad groups of damages. General damages are those awarded for intangible losses, such as pain and suffering, loss of consortium etc. 17 Special damages, on the other hand, are those that compensate. an injured party for quantitative monetary losses. Such damages are therefore based on measurable amounts of actual loss. So, usually they are capable of calculating mathematically. Examples include, medical bills, cost of repair of a destroyed or lost property, out of pocket expenses, loss of earnings, now and in the future, loss of ·! wages and others which are not speculative or subjective. · The law demands that special damages be not only specifically pleaded but also strictly proved (See KIMANI v A.G. & (1969) E.A 502) CMC vs ARUSHA OCCUPATIONAL HEALTH SERVICES (1990) TLR 96, TANZANIA SARUJI CORPORATION v AFRICAN MARBLE COMPANY LIMITED (2004) TLR 155. We agree with Mr. Ogunde and the decisions cited by him that assessment of damages is primarily the province of a trial court and that an appellate court could interfere only if it is satisfied that the trial court applied· a wrong principle of law or finds that the amount awarded is either inordinately low, or so high that it must be wholly 1.8 erroneous an estimate of damage · (See CMC v ARUSHA OCCUPATIONAL HEALTH SERVICES (Supra) · In the present case the respondent pleaded in paragraph 7 of his plaint, that, from a valuation conducted in September, 2003 of his . mines, it was ascertained that a total of 89,520 cubic metres of l gravel and stones, and 134,295 cubic metres of muram and stone· . pebbles, were excavated by the appellant and· their total worth was Tshs. 1,374,000,000/=. This valuation, according to exhibit P2 was based on the market value of the mines accordirig to prices set by · the Kagera Regional Tender Board. But the trial judge disagreed. with the valuer's opinion and assessed the damages at Tshs; 974,000,000/= Mr. Ogunde has taken strong ·exception to this assesment by branding it arbitrary, it having proceeded from a wrong formula, and therefore it was based on a wrong principle and asked us to intervene and set it aside. Mr. Kamala just submitted that the ground was not supported by the evidence on record. On our re evaluation of the evidence on record, we have found that, although the respondent had pleaded· that the cause of action 19 arose in May, 2001 the testimonial evidence from PW1, is not dear on the exact date(s) of encroachment. Part of his evidence was based on hearsay, but it is certain that he met the CHICO Project · Manager in June, 2001. After meeting the CHICO management they went to the site, and from there, they took some samples of J\Ylaterials for analysis. PW1 did not testify whether he noticed any encroachment during that visit. That means the period May, 2001 · . ' remains un accounted for. According to hini, it was then that CHICO entered into a blasting agreement with MARK & GENERAL AGENCIES ½TD after which PWl proceeded to Zaire. So, in our judgment up to · the time PWl left for Zaire, CHICO had access to the site with the consent of the respondent. Again, from hearsay, PW1 told the trial court that he "heard" that work had started in his site. So there is no concrete evidence as to when exactly the excavations began. When· he came back in April 2002, DWl openly challenged his ownership of · the site, and in October 2003, he filed the suit. We are therefore firmly of the view that, the respondent's cause of action arose in April, 2002, when his title was challenged, not May, 2001, as alleged 20 in the plaint. Therefore the measure of damages should have been confined to the period between April, 2002 to October 2003 .. · . . . On the basis of the evidence of PW1, PW2 and Exh P2 it is not clear when did the excavations of the mines take place but it is also hot also clear when were the prices of the materials in question, fixed by the Kagera Regional Tender Board. Was it 2001, 2002 or 2003?. ; If the excavations took place in 2001 or alleged, or 2002, were the prices the same? If not, what were the prevailing prices then? When were the current prices fixed? How far were they applicable to the materials excavated atthe·established time? The above questions, whose answers we cannot gather from · . . . the evidence on record, leads us to the conclusion, that although the special damages were pleaded, they lacked essential particulars, and were not strictly proved as required by the law. This is because, while the valuation report reflects the market value of the materials as at September 2003, the cause of action is alleged to have arisen in 2001, the evidence suggests it was 2002, and yet it is not known wl1en were those prices fixed by the Regional Tender Board. As held 21 by this Court in EDOM GODFREY MLINGA v R (1981) TLR 140, a valuer must take into account all relevant factors existing at the material time before making a ·correct assessment of the market · value of the property in question. It was therefore important for the respondent to have proved how much material was excavated and when, and what was the market price then, which information would h~ve been relevant for a proper assessment of the actual loss. For all the above reasons, we find that in substance the appeal has no merit except for the last ground. Although the· respondent ha.d svcceeded in proving his case generally he had failed to specifically plead and prove the special damages he had sought. We therefore agree that the award of Tshs. 974,000,000/= granted by the High Court had no basis and was not strictly proved. It was therefore an error of principle to award it. It is therefore set aside. But it is a fundamental· legal principle in the administration of justice I that there is no wrong without a remedy "ubi Jus ibi remedium/~ So, although the respondent has failed to prove the special damages he pleaded, there is no doubt in our judgment that some wrong was committed to him. So he cannot be le~ without a remedy. We think • 22 . . . . . . that" the justice of the case demands that we give him some relief. · • We do• so under "any other and further reliefs" which he· had .· prayed for in his plaint. · In doing so we would not be straying in virgiril territory. ! This Court had taken a similar course in ZUBER! AUGiUSTINO v ANICET MUGABE (1992) TLR. 137. In the '· circuinstances of this case, we think the amount of Tshs. 500,Q00,000/= (five hundred million) would do as damages and it is so as,sessed. This amount shall bear interest at court rate from the date of this judgment till payment in full. That said, we allow the appeal only in part. Save for the last groun.d, the other grounds of appeal are dismissed. The respondent shall have 5/6 ofhis costs in this appeal and the court below. DATED at DAR ES SALAAM this ih day of November, 2012 . N.P. Kimaro JUSTICE OF APPEAL S.A. Massati JUSTICE OF APPEAL K. Mussa JUSTICE OF APPEAL . ' ~-~~:- ·;·•· .t f. 23 copy of the original. M. I • M:A.1-EW DEPUTY REGIST ... · COURT Of APP ., ·. I