DEOGRATIAS JOHN RUGABA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA CIVIL CASE NO. 1 OF 2023 DEOGRATIAS JOHN RUGABA……………………………..………………….PLAINTIFF VERSUS HAINAN INTERNATIONAL LIMITED……..…..…………………………..DEFENDANT JUDGMENT Date of Last Order: 25th September, 2024. Date of Ruling: 01th November, 2024. E.E. KAKOLAKI, J. The plaintiff herein who claims to be a licensee or owner of copper prospect and mining licences at Nyahaa area in Mkalama District within Singida Region under two primary mining licences No. 004229CZ and No. 004230CZ is suing the defendant, a registered company under laws of Tanzania dealing with construction business for encroachment of the suit land in 2017 and excavated therefrom gravel materials containing different minerals which she 1 used in the construction of Sibiti Bridge and the gravel road project contracted to her by Tanzania National Road Agency (TANROAD). He is thus praying for judgment and decree against the defendant for payment of Tshs. 2,806,136,930, being 96% of the value of the materials illegally excavated from his land, interest on the principal sum from the time it fell due on 1 st January, 2018 when the 4% Government royalty was initially paid by the defendant up to the date of judgment, interest at the decretal amount from the date of judgment to the date of payment, costs of the suit and any other relief that this court deems fit to grant. In her Written Statement of Defence the defendant disclaimed all claims by the plaintiff contending that, his mining licences were strictly meant for prospect and mining of copper and not gravel and sands and that, he never proved ownership of the disputed land nor established with certainty the quantity and value of the claimed gravels illegally excavated from the said land. And further that she never agreed to pay the plaintiff anything as compensation for the claimed excavated materials. Following defendant’s denial of his claims, the plaintiff in the trial conducted in the form of witness statements had to summon two witnesses being 2 himself as PW1 and the then Singida Regional Mining Officer, Chone Luhangizya Malembo (PW2) and rely on seven (7) documentary exhibits in a bid to prove the case against her. The tendered exhibits were two primary mining licences No. 004229CZ and No. 004230CZ issued in 2014 (exh. PE1 collectively), a letter from Assistant Mining Commissioner for Central Zone, Singida dated 17/10/2017 (exh. PE2), a letter from Deputy Mining Officer for Singida region who is also PW2 dated 14/01/2019 (exh. PE3), sample materials allegedly collected from the suit land and examined in the laboratory at Mwanza (exh. PE4 collectively), a letter from the Ministry of Minerals dated 17/03/2022 (exh. PE5), a letter with reference No. AB.155/169/939/27 of 07/11/2022 by the Executive Secretary Mining Commission to M-S LAW Partners (Advocates) regarding the search conducted in the suit land and payments receipt made by the defendant (exh. PE6) and a demand letter of 30/11/2022 and its reply from the defendant of 19/12/2022 (exh. PE7 collectively). On the defence side the defendant called one witness only Angelina Julis Qambade (DW1) a principal officer to the defendant who produced no documentary exhibit to rely on. Both parties had the services of advocates whereas the plaintiff hired the services of Mr. Mlyambelele A. L. Ng’weli from M-S Law Partners (Advocate) 3 while the defendant enjoying the services of Mr. Dickson Sanga, learned advocate, who at the end of the trial filed their respective final submission which I am thankful to as were useful in composing this judgment. Before commencement of trial the Court framed three issues to enable smooth determination of parties’ dispute. These were styled as one, whether the plaintiff is the lawful owner of the suit land held under primary licences No. 004229CZ and No. 004230CZ, second, whether the defendant invaded the plaintiff’s land described above and mined gravel therein and thirdly, what reliefs are the parties entitled to. In this judgment I am not intending to reproduced the whole evidence as I will be referring and evaluating the same in the course of determination of the above stated issues. Before venturing into determination of the three (3) issues raised above, I find it apposite to revisit the principles guiding proof of civil matters, that shall guide this Court in determination of parties’ dispute. It is a settled principle under sections 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] that, he who alleges must prove and that, the burden of so proving existence of a particular fact lies on the person who would wish the court to believe its existence and enter judgment in his favour. As to the standard of proof, the law under section 3(2)(b) of Evidence Act provides that, it is on the 4 preponderance of probability or balance of probabilities. See also the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (CAT-unreported) and Berelia Karangirangi Vs. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017 (CAT Unreported). In the case of Berelia Karangirangi (supra) the Court of Appeal had this to say: ’’We think it is pertinent to state the principle governing proof of cases in civil suits. The general rule is that, he who alleges must prove….it is similar that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities.’’ (Emphasis supplied) It is further settled law that, in determining whether the burden of proof has been discharged, the Court will sustain evidence which is heavier than the other as it was held in the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha, Civil Appeal No. 53 of 2017 (CAT-unreported) at page 14 where the Court of Appeal had the following to say: 5 ’’It is trite law and indeed elementary that he who alleges has a burden of proof as per section 110 of the Evidence act, Cap. 6 [R.E 2002]. It is equally elementary that since the dispute was in civil case, the standard of proof was on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible that the other…’’ (Emphasis supplied. With the above principles in mind, it is now opportune for this Court to examine the evidence adduced by the parties and consider their final submission in answering the issues framed by the Court for determination of their controversies over alleged excavated sand and gravels from the plaintiff’s mining site by the defendant. To start with the first issue as to whether plaintiff is the lawful owner of the suit land held under primary licences No. 004229CZ and No. 004230CZ, plaintiff’s evidence (PW1) was to the effect, that in 2014 he applied for and was issued with two primary mining licences No. 004229CZ and No. 004230CZ, to prospect and mine copper at Nyahaa area in Mkarama District in Singida Region that were 6 tendered and admitted in evidence as exhibit PE1 collectively. To corroborated his evidence the then officer from the office of Commissioner for Minerals Central Zone (PW2) confirmed to this Court to have known the plaintiff as owner of the said two licences who had complained in their office over encroachment by the defendant of his land for prospect and mining of copper. He said, in response to the said complaint his predecessor in office wrote TANROAD a letter dated 17/10/2017 (exhibt PE2) informing them that, the defendant who was working under their supervision as contractor for Chemichemi to Sibiti road construction project had excavated sand and gravels from large part of unlicenced area including small part of the plaintiff’s prospect and mining site. In his submission Mr. Ng’weri argued that, the evidence established to the required standard of proof that the plaintiff was the rightful owner of the mining licences as the said exhibits were never objected or questioned during cross examination. On the adversary part the defendant through Mr. Sanga submitted that, the plaintiff never proved ownership of the disputed land as ownership is only proved by registered title in which the plaintiff failed to tender. To fortify his argument the Court was referred to the case of Amina Maulid Ambali and 2 Others Vs. Ramadhani Juma, Civil Appeal No. 35 of 2019 (CAT) Tanzlii 7 where the Court to Appeal held that, where two parties have competing interest over landed property, a person with a certificate of title will always be taken to be a lawful owner. According to him the said two primary licences have nothing to do with proof of ownership of land hence a prayer for this Court to find ownership of the disputed land was not proved. I have closely followed the competing submission by the parties as to whether the plaintiff established ownership of suit lane through the said two primary mining licences exhibit PE1 collectively. While I am at one with Mr. Sanga’s submission that, in determination of ownership when two persons have competing interests over landed property the one with certificate of title will always be considered as a lawful owner, I only disagree with him on the contention that, certificate of title is the only means of proving ownership over land. It is settled law in our jurisdiction now that land ownership can be acquired through different ways. These are, one, allocation by the Government authority, two, sale, three, inheritance, four, gift, five, adverse possession and six, clearance of unoccupied bushes. See also the decisions of this Court in Serikali ya Kijiji Karumo Vs. Wahalalika Siyonka, Land Appeal No. 02 of 2021 and Ramadhani Rashid Kuhuka 8 Vs. Jela Maiko Meja and 44 Others, Land Case No. 25 of 2022 (both HC) Tanzlii. In this matter however, apart from the plaintiff the defendant is not claiming ownership over the suit land for the principle in the case of Amina Maulid Ambali and 2 Others (supra) to apply. As land ownership can be acquired through allocation by the government authority, in this matter since the plaintiff established to the Court’s satisfaction to have been allocated and issued with the prospect and mining right in respect of the disputed land and in absence of any evidence that the said licences for 7 years tenure from 2014 was revoked by Commissioners for Minerals, I hold on the balance of probabilities plaintiff’s ownership over the disputed land was proved. My findings are fortified in the provisions of section 55(3)(a) to (e) of the Mining Act [Cap. 126 R.E 2019] conferring to the holder of the primary mining licence exclusive right to carry on prospecting and mining operations in the mining area which covers erection of equipment, plant and buildings during existence of tenure of the licence since as a matter of fact a person cannot have a right to conduct activities on the land which he does not own. The said section 55(3) of the Mining Act reads: (3) A primary mining licence to mine minerals granted under this section shall confer on the holder the exclusive right, 9 subject to this Act and the Regulations including the Regulations applicable to safety and the protection of the environment, to carry on prospecting and mining operations in the mining area, and for that purpose the holder, his servants and agents (being persons not disqualified under subsection (2) of section 8 from holding a primary mining licence) may, in particular – (a) enter on the mining area and take all reasonable measures on or under the surface for the purpose of mining operations; (b) erect the necessary equipment, plant and buildings for the purpose of mining, transporting, dressing or treating the minerals recovered by him in the course of mining operations; (c) subject to payment of royalties in accordance with this Act and the regulations dispose of any mineral recovered to a holder of a dealer’s or broker’s licence 10 (d) stack or dump any mineral or waste product in compliance with the applicable regulations; (e) carry on prospecting operations in the mining area. In view of the above this Court is satisfied that the plaintiff is the lawful owner of the suit land under primary mining licences No. 004229CZ and No. 004230CZ, hence the first issue is answered in affirmative. Next for determination is the second issue as to whether the defendant invaded the plaintiff’s land described above and mined gravels therein. In proving this issue it was plaintiff’s testimony through PW1 that, in 2017 he noted of the defendant’s encroachment in his prospect and mining site at Nyahaa area within Mkalama District when constructing the Chemichemi to Sibiti road project and reported that trespass to the Assistant Commissioner for Mineral (Singida Reginal Mines Officer) who discovered that the defendant had invaded and excavated gravel materials from his site as shown in the letter exhibit PE2 to TANROAD asking it take appropriate measures to mend the situation as supervisor to the defendant. According to him a reminder letter exhibit PE3 by the Singida Mines Office to compensate the plaintiff was wrote to the defendant without response 11 something that moved him to collect samples from the site and send them to NESCH MINTEC laboratory Mwanza for evaluation the samples which were tendered as exhibit PE4. Since the defendant was adamant to pay the he added even the permanent secretary ministry of minerals wrote her but in vain as show in exhibit D5. It was his further evidence that, his lawyer conducted search from the Resident Mines Office at Singida the result of which disclosed the defendant paid for royalty of 4% of the value of the excavated materials as exhibited in the letter and two receipts exhibit PE6 Collectively in the names of Haina International Ltd and He Zhen, making a total of 116,992,372/-. When cross examined as to whether exhibit PE3 disclosed the defendant’s name PW1 said it did not. On further cross as to whether the alleged receipts for royalty payments disclosed the source of excavated materials that were levied PW1 said none them disclosed so. And when asked as to whether they visited the site during the alleged excavation process PW1 said yes claiming that, they found defendant’s workers there and took them some picture though he failed to tender them or identity cards of the said workers or registration numbers of the motor vehicles involved in transportation of the alleged gravels. In his submission Mr. Ng’weri impressed upon this court that, all the above evidence by the plaintiff 12 through exhibits PE1 to PE6 proving ownership of the mining licences over the disputed land and the defendant’s paid royalty of 4% out to the total minerals or materials excavated illegally from plaintiff’s site, clearly proved that she invaded the said land and illegally mined the gravels hence the 2 nd issue positively proved. In her defence through DW1 the defendant denied plaintiff’s claim that she encroached the alleged prospect and mining site of copper in which the plaintiff failed to establish her ownership, quantity of the gravel allegedly mined therefrom and its value as there was no even single valuation report tendered in Court. In his final submission against the plaintiff’s claims Mr. Sanga noted that, the plaintiff had failed to establish existence of the alleged invasion of the suit land by the defendant as raised in the second issue for five reasons. One, no contract for the project of Sibiti bridge was tendered to prove contractual work by the defendant, second, no quantity surveyor’s report to show the amount of materials alleged mined, third, no pictures showing defendant’s workers were collecting materials from the plaintiff’s site, four, no eye witness testified to have seen defendant’s employees at the site and five that, no evidence proving that defendant’s vehicles 13 collected materials from the plaintiff’s mining site. He therefore prayed the court to find this issue is not established on the required standard. I have dispassionately considered and evaluated both parties’ evidence in a bid to determine the above second issue. As alluded to above the onus of proving that, the defendant invaded plaintiff’s land and mined the gravels therefrom lies on the plaintiff’s shoulders. Having weighed the evidence adduced by him (PW1) and PW2 as well as the exhibits relied on, I entertain doubt as to whether it is the defendant who invaded the plaintiff’s mining site at Nyahaa area within Mkalama District and mined the gravels as alleged. My doubts are founded on different grounds. Firstly, there is no proof as submitted by Ms. Sanga that defendant’s employees were seen excavating some materials from the said site as when cross examined, PW1 merely claimed to have found them there but none of them was disclosed by his/her identity to the Court’s satisfaction that was defendant’s employee. Second, it is believed if at all true that, the said materials were shifted by the defendant’s vehicles from the plaintiff’s claimed site. However, no single registration number of one of the said vehicles was ever disclosed by either PW1 or PW2 who allegedly visited the site once during such illegal operation. 14 Third, the letter in exhibit PE2 in which the plaintiff relied on to claim that the sand and gravels for construction of road project from Chemichemi to Sibiti were excavated largely from unlicenced area and small part of his mining site, does not disclose the name of the person who was mining nor does mention her/him to be the defendant. Fourth, there is even confusion as to who actually was mining the materials for road construction from plaintiff’s mining site since the letter by the Resident Mines officer for Singida in exhibit PE3 advising its addressee to consider paying the plaintiff compensation for the excavated minerals from his site and an order to submit the quantity of materials mined therefrom was directed to International Ltd BP and not the defendant. Exhibit PE3 it is noted is a letter from the same office that issued a letter in exhibit PE2 notifying TANROADS that, their site visits established mining of construction materials from unlicenced site and small part of plaintiff’s site without mentioning the person who was mining them. As the said person was disclosed later on in exhibit PE3 to be International Ltd BP and since there is no documentary evidence the said name of International Ltd BP is used by the defendant, it is safely concluded that, the defendant cannot be the person who excavated the said gravel materials from the plaintiff’s prospecting and mining site. Fifth, the relied 15 on two receipts in exhibit PE6 collectively do not also prove that the defendant mined minerals from the plaintiff’s site. I so view as the first receipt bear the name of He Zhen who is not the defendant but rather a natural person who alleged to be defendant’s site manager. However, there is no proof that he was the defendant’s manager as claimed for want of identity. The second receipt that bears defendant’s name was for payments in respect of royalty and inspection fees for building materials which its source is even not known, thus no proof that the same came from plaintiff’s site. Sixth, the physical samples marked S21/00353/01 and S21/00353/02 allegedly collected from the site and tested in the minerals laboratory at Mwanza exhibit PE4 collectively, again do not provide valuable evidence proving that, the defendant mined minerals from the plaintiff’s site as the same were collected from the mining site without comparison with any of the materials collected from the defendant’s construction site. From the above analysis of evidence this court is satisfied on the balance of probability that it is likely the alleged minerals or materials from the plaintiff’s prospecting and mining site were excavated by another person other than the defendant, as the plaintiff ought to have adduced cogent evidence moving this Court to appreciate that, on the evidence adduced the 16 occurrence of the event was more likely to happen than not as it was held in the case of Mathias Erasto Manga Vs. M/S Simon Group (T) Limited, Civil Appeal No. 43 of 2013 (CAT-unreported) the Court made reference to the case of Re Minor (1996) AC 563, but failed to so do. Thus the 2nd issue is answered in negative in that the defendant never invaded the plaintiff land under primary mining licences No. 004229CZ and No. 004230CZ. Lastly is the third issue as to what reliefs are the parties entitled to. The plaintiff in his plaint prayed for several reliefs which are awardable subject to proof that, the defendant invaded his prospecting and mining site and excavated gravels therein. As he has failed to discharge his duties by proving the claims on the balance of probabilities the claims die a natural death. The only remedy he is entitled is none than dismissal of the suit for want of merit. All said and done, this suit is dismissed for want of merit with costs. Ordered accordingly. Dated at Dodoma this 08th day of November, 2024. 17 E. E. KAKOLAKI JUGDE 08/11/2024. Court: The judgment has been delivered at Dodoma today on 08 th day of November, 2024, in the presence of the Mr. Mlyambelele Mweri, for the Plaintiff, Mr. Dickson Sanga, advocate for the Defendant and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 08/11/2024. 18