CIVIL CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL CASE NO. 48 OF 2023 CHRISTIAN WILLESEM................................. COMPLAINANT / APPELLANT I APPLICANT I PLAINTIFF VERSUS AFRAEL THOMAS SWAI................................ RESPONDENT / DEFENDANT RULING A. Z. BADE, J, 23/07/2024 & 13/09/2024 BADE, J. The Plaintiff instituted this civil case against the Defendants, praying for this court to issue an order of specific performance of a technical support agreement in gemstone prospecting and mining in the shaft covered by primary mining license no. PML 00378smn at Kidawash in Simanjiro District of Manyara Region, or payment of Tanzanian Shillings Five Hundred and Eighty Million (TZS. 580,000,000.00) being the total specific damages occasioned by Defendant’s breach of the agreement, general damages and costs of the suit. Before this suit could be heard, the Defendant in his Written Statement of Defence raised a point of preliminary objection to the effect that: I. The plaintiff lacks legal capacity to bring the present suit. 2. The suit is incompetent for being filed before a court without proper jurisdiction. The point of preliminary objection was disposed of by way of written submissions, with the Plaintiff being represented by Mr. Joscphat Z. Msuya, a learned advocate, while the Defendant was represented by Mr. Ipanga Kimaay, also a learned advocate. Upon submitting on the same, the Defendant’s counsel chose to drop the first point of preliminary objection and submitted only on the second point of preliminary objection. In support ot the raised second point oi preliminary objection, Mi. Kimaay submitted that the cause of action is on breach of the contract for prospecting mining activities. He refcncd this court at anncxure “A-I”, That, under clause D of the said Agreement, the choice of the parties to have their dispute adjudicated by the Commissioner for Mines & Geology under the Mining Act, [Cap 123 R.E 2019] is in line with the provision of section 119 of the Mining Act which sets a mechanism for settlement of disputes arising from mining activities or operations. Mr. Kimaay added that section 119 of the Mining Act makes it compulsory to refer a mining dispute to the Commission for Mining which is established under section 21 (1) of the Act. Mr. Kimaay further argues that, in addition to section 119 of the Act, section 22 of the same Act provides for the functions of the Commission which includes settlement of disputes arising from the mining operations or activities. In his view, according to the cited sections, reference of the dispute arising from mining operations or activities to the Mining Commission is statutory and thus compulsory. It is Mr. Kimaay’s contention that the Commission for Mining is the one vested with original jurisdiction to determine mining disputes like the one between the parties, and after its decision if a party is aggrieved would be free to take recourse to this court by way of an appeal under section 121 of the Act. Submitting against the 2nd point of preliminary objection. Mr. Msuya argues that the Defendant’s advocate is trying to mislead this court because it goes against the principle established in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd[1969| E.A 696. He contends the Defendant's counsel admitted that the cause of action is based on a breach of contract. It is Mr. Msuya’s contention that it is thus improper for this court to refer to annexure “Al” and rely on it to make a decision on the raised preliminary objection because the said contract though forming the base of the dispute at hand, it has not been tendered and admitted in court as evidence and it is also not possible to consider evidence at a premature stage as this shall contravene the principle laid down in the case of Mukisa Biscuit (supra). Mr. Msuya Further argues that annexures to pleadings are evidence on merits and it is illegal for the court to base its ruling on annexures to pleadings which are not yet tendered and admitted in the hearing. To support his position, he wanted this court to be persuaded by the decision in Abdalla Abass Najim vs Amini Ahmed Ali, Civil Appeal No. 13 of 2005, HC of Zanzibar [2006] TLR 55 (Reported at Tanzlii). Moreover, Mr. Msuya submitted that relying on annexures to pleading when determining a preliminary objection will contravene the provisions of Order XIII Rule 4 (1) and Rule 7 (1) and (2) of the Civil Procedure Code as it was held in the case of M/S Dv Transami (Tanzania) Limited Vs M/S Ste Datco, Civil Appeal No. 16 of 2011 holding that annexures to the pleadings are not part of the record and cannot be relied on in making any decision until they arc tendered in court and cleared in evidence. It is Mr. Msuya’s contention that the Defendant’s counsel admitted that the cause of action is centered on the breach of a technical support agreement between the parties for prospecting and mining, so disputes between the parties arc both a mining as well as contractual. He added that this court has a duty to determine whether such dispute fulfills conditions laid down under section 119 (1) of the Mining Act in order for the Commission for Mining to have exclusive jurisdiction to entertain the dispute. To buttress his position, he wanted this court to be persuaded by the decision in the cases of Kifaru Gold Mine Nyaligongo Mwakitolyo vs Africa Co. Ltd, Misc. Land Application No. 67 of 2023 (Reported al Tanzlii) and the case of Jackson Nyamachoa vs Higera Zablon and two Others, Civil Appeal No. 31 of 2020. and the case of Godyson Steve Ogambi and Two Others vs Magere Mang’era, Civil Appeal No. 13 of 2022, adding that according to the cited cases, section 119 (1) of the Act is only permissive as it is not couched in mandatory terms since it used the word “may” and not “shall”. In his view, the Commission for Mining has no exclusive jurisdiction to deal with disputes emanating from mining contract and mining activities. He insists that the Commission for Mining is permitted to entertain disputes falling within the ambit of section 119 (1) (a) (b) (c) and (d) only. He insisted that disputes relating to breach of contract are not covered by the said provision. In rejoinder, on the argument that it is wrong to rely on annexures to determine the preliminary objection, Mr. Kimaay submitted that annexures are part of the pleadings including Plaint and Written Statement of Defence. He further argues that annexures to the Plaint establish the cause of action. To support his position, he cited the case of Serafim Antunes Affonso vs Portan Enterprises Limited and 7 Others, Commercial Civil Case No. 17 of 2000, and the case of Magambazi Mines Company Ltd and 4 Others vs Kidee Mining (T) Limited. He argues that the choice of the parties under the joint venture agreement to resolve their dispute under the Mining law must be accepted by this court as much as it is not repugnant to the laws. To cement this position, he cited the case of Unilever Tanzania Ltd vs Benedict Mkasa Trading as Bema Enterprises, Civil Appeal No. 41 of 2009. Mr. Kimaay insisted that according to the principle established in the cited case, the parties1 choices to go to the Commission for Mining to adjudicate their dispute does not mean that it conferred jurisdiction to the Commission while ousting the jurisdiction of this court, rather, their choice is permissible under the law. He insisted that since the suit was founded on a breach of the mining contract, the Commissioner for Mining & Geology is clothed with jurisdiction to adjudicate on the dispute by choice, and not this court. Having considered the pleadings of this case and rival submissions by parties, the issue for determination here is whether this court has jurisdiction to determine this matter. The main reason for the Defendant’s counsel to question the jurisdiction of this court in hearing and determining this matter is the fact that clause D of the Agreement entered by the parties stipulated clearly that in case of any dispute they should resolve it amicably between the parties, and if they fail to so resolve the dispute amicably, they will refer the said dispute to the Commissioner for Mines & Geology for arbitration in accordance with the Mining Act, [Cap 123 R.E2019], Since the agreement provides for terms and conditions for dispute resolution, then it was the duty of the Plaintiff to first exhaust the mechanism to resolve the disputes provided for in the said Agreement before engaging the court. As the dispute resolution machinery was not exhausted, and if it was, then there is no such proof provided before the court, then the agreement cannot be relied upon to be the basis of the Plaintiffs claim concerning the terms covered by the said Agreement. It goes without saying that this case is before this court prematurely. Unless otherwise, the machinery of dispute resolution as agreed upon by the parties were exhausted, this Court is seized of its power at this stage to consider whether or not there was a breach of the Agreement. The argument by the Plaintiffs counsel that this is not a point of preliminary objection; or, that even if it was a point of preliminary objection, parties arc not bound by clause D as the issue on whether or not there was a breach of Agreement is not covered under section 119 (1) (a) (b) (c) and (d) of the Mining Act is, in my view, misconceived on two reasons, firstly, the said Agreement is pleaded and attached to the Plaint, and therefore it forms part of the Plaint as correctly argued by Mr. Kimaay, and secondly, the question about the jurisdiction of the Court against the assertion of the fact that parties are bound by the contract which gave rise to the claim that is in court now (requiring the parties to refer the dispute to arbitration), qualifies to be a point of preliminary objection. In the cited case of Mukisa Biscuit (supra) when defining what is a preliminary objection, it was stated: “.... ci preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and if argued as a preliminary point may dispose of the suit. Examples are objection to the jurisdiction of the court, or a plea of limitation, or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration ”. [Emphasis mine] As long as under clause D of the Agreement the parties have agreed that in any case of disagreement or misunderstanding that may arise in the course of the execution of the said Agreement, they will refer the matter to the Commissioner for Mines & Geology for arbitration, then they arc bound to adhere to the said term. It is a settled law that parties are bound by the agreements they freely entered into and this is a cardinal principle of the law of contract. See the case of Simon Kichele Chacha vs Aveline M. Kilawe, Civil Appeal No. 160 of 2018 where the Court of Appeal sitting in Mwanza pronounced itself on the matter. Having said so, the point of preliminaiy objection is hereby sustained. This case is struck out with costs for being incompetent before this Court. It is so ordered. Dated at ARUSHA ZONE this 13 th of September 2024. A. Z. BADE. J JUDGE OF THE HIGH COURT