CIVIL APPEAL NO 111 OF 2021 EZEKIEL MAGESSA VS GEITA GOLD MINING LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: MWAN DAMBO, J.A.. MASHAKA. J.A. And MDEMU. J J U CIVIL APPEAL NO. I l l OF 2021 EZEKIEL MAGESSA............................................................... APPELLANT VERSUS GEITA GOLD MINING LIMITED............................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) ( Maevekwa. J.^ dated the 13th day of May, 2020 in Land Case No. 13 of 2018 JUDGMENT OF THE COURT 10*8118th July, 2024 MWANPAMBO. J.A.: The appellant lost to the respondent in a suit for, amongst others, a judgment declaring him as the lawful owner of a mining area known as Chibugwe No. 1 in Geita District (the disputed property) in Land Case No. 13 of 2018 before the High Court at Mwanza. That suit was triggered by the respondent's notice of eviction dated 30 May, 2018 to the appellant allegedly conducting mining activities covered under its Special Mining Licence. The High Court (Mgeyekwa, J - as she then was) dismissed that suit for lack of proof of a licence by the appellant to conduct mining activities in the said area. Resenting the decision, the appellant has preferred this appeal upon a memorandum of appeal containing 4 grounds of appeal. Nevertheless, the determination of the appeal turns on ground one in which the trial court is faulted for the alleged failure to evaluate and scrutinize evidence resulting in an erroneous finding on the ownership of the disputed property and hence, dismissal of the suit. The facts from which the suit before trial court was instituted are, by and large, common ground except the interpretation of such facts. Briefly, the genesis of the suit arose from a dispute over a mining area known as Chibugwe No. 1 which the respondent claimed to have been part of its Special Mining Licence No. 45/99 (exhibit D2). The appellant's case was premised on his claim that he had been in an uninterrupted occupation as early as 1984 when it was vacant and un-surveyed before being subject of a contract between the Government of Tanzania with a company called Dar Tadine Tanzania Ltd (DTT). Following the said agreement, the DTT appointed the appellant to be a supervisor of the area also known as Ridge 8. After the Government's termination of the contract with DTT, the 2 appellant continued with his role upon permission by the District Commissioner of Geita District vide letter dated 25 May, 1990 (exh. P2). Afterwards, in 1991 the appellant secured a prospecting right over the disputed property running up to 1998. In between, several correspondences towards ownership of the disputed property were exchanged between the appellant and the Government through the ministry responsible for minerals. After such correspondences, it became obvious that the appellant's application could not be granted as evident in paragraph 18 of the plaint in which he avers that the ministry rejected his application for title to the property as the same was set aside for a big company. His averment was supported by a letter dated 11 June, 1998 a copy of which was annexed as LA-10 as part of the plaint. The above notwithstanding, the appellant continued with mining activities in the area uninterrupted as averred in paragraph 20 of the plaint paying royalties to the Government evidenced by corresponding receipts (exh. P8). On 30 May, 2018 the respondent issued a notice of eviction to the appellant claiming that he was conducting activities illegally in the area falling under its special mining licence. The appellant resented the notice by instituting the suit claiming that he had exclusive right to the property for exploration and mining gold as of 1999. It was his contention that neither the Government nor the respondent entered the area for exploring and mining and thus, the respondent was barred from claiming that it had exclusive right to the area having slept over her alleged right for 20 years. From the above facts, the appellant prayed for a declaratory judgment as alluded to above and permanent injunction restraining the respondent from the eviction, amongst others. The respondent's case was that being a holder of a valid licence over the disputed area, it had exclusive right to its use and that, the appellant was, but a trespasser. The trial court framed 3 issue for the determination of the suit, namely; (1) whether the plaintiff (appellant) was lawfully occupying the land, (2) if the first issue is answered affirmatively, whether the notice issued by the defendant (respondent) to vacate from the suit land was unlawful and (3) to what reliefs are the parties entitled. We wish to observe, albeit in passing that, the manner the second issue was crafted is not free from difficulty. This is so because, it was the respondent who asserted that the notice was lawful, the burden of proof was on her to prove that it was so. All the appellant did was to allege that the notice was unlawful but it could not legally be required to prove that it was unlawful. All the same, since the trial court found it superfluous determining that issue having answered the first issue negatively, we need not say anything more on this. The trial court's finding on the first issue was premised on the Mining Act, 2010 (henceforth, the Act) against the appellant's evidence both oral and documentary. Upon such evidence, the trial court was satisfied that none of the documentary exhibits tendered by the appellants proved that he was a holder of a prospecting licence or a mining licence or a special mining licence issued under any of the provisions of Part IV of the Act. On the contrary, the trial court found established through the appellant's own pleadings as well as his evidence on the rejection of his application for title as evident in paragraphs 18, 19 and 21 of the plaint. The trial court's finding was reinforced by the Court's decision in Hosea Katampa v. The Ministry of Energy and Minerals & 2 Others, Civil Appeal No. 221 Of 2017 [2018] TZCA 225 (3 October 2018, TANZLII) for the proposition that, mining or mineral activities cannot take place outside the strict legal regime provided under the Act. This finding is faulted by the appellant allegedly because it was a result of failure to evaluate and scrutinise evidence adduced before the trial court. Messrs. Leonard Sylvanus Joseph and Silwani Galati Mwantembe, learned advocates appeared for the hearing representing the appellant and respondent respectively like they did before the trial court. Earlier on, the appellant's learned advocate had lodged his written submissions followed by a reply thereto by the respondent's advocate. We are grateful to learned counsel for the industry in the submissions with authorities which are quite illuminating on the issues before us. However, we wish to state that given the approach we have taken in determining the appeal, we beg to be excused for our inability to refer to each and every aspect referred in the submissions. As highlighted earlier, the complaint in the first ground relates to the alleged failure to evaluate evidence on record and hence arriving at an erroneous finding on the first issue in relation to proof of lawful occupation of the disputed property. The essence of the learned advocate's submissions both written and oral canvassed during the hearing of the appeal was that, contrary to the finding by the trial court, the appellant proved lawful occupation of the disputed property. According to the learned advocate, the evidence proving lawful occupation of the disputed property was through exhibits PI - P10, inclusive, starting with a letter dated 31 January, 1990 from DTT appointing the appellant as a supervisor in the area (exhibit PI). Others included, largely, various correspondence with the Government exhibits which the appellant's advocate contended that they were not properly evaluated and scrutinised comprising; a letter dated 25 May, 1990 (exhibit P2) from Geita District Commissioner authorising the appellant to continue with supervision of mining activities following termination of the contract DTT had with the Government; a letter dated 16/12/1993 (exhibit P4); a letter dated 20/04/1994 (exhibit P4); letter dated 28/05/1997 (exhibit P7). Others included; exchequer receipt No. 05140235 (exhibit P3). He stressed that the appellant had been recognized by the Tanzania Government vide exhibit P7 and paying for the mining royalty fees in accordance with the exchequer receipts (exhibit P9). According to him, the exhibits proved that the appellant had been the owner and occupier of the disputed property prior to its purported deprivation by the respondent. In particular, it was contended that, the receipts proved appellant's ownership in the disputed property. Counsel urged that, had the learned trial judge evaluated the evidence properly, she would have found that the appellant was the lawful owner of the disputed property allegedly distinct from the property 7 covered by the respondent's licence (exhibit D2). In his oral submission, Mr. Joseph forcefully argued against the trial Judge's failure to scrutinise exhibit D2 properly which was not issued to the respondent but to a third party. In the course of the submissions, counsel introduced an issue involving enlargement of the mining licence thereby insinuating that the respondent's original licence did not cover the disputed property. He concluded by urging us to allow the appeal with costs. Like his learned friend, Mr. Mwantembe stood by the written submissions, urging the Court to dismiss the appeal for lacking in merit. The substance of the learned advocate's submissions both oral and written resided in section 4 and 6 of the Act on the basis of which the trial court made a finding that the appellant was not a lawful owner of the disputed property in answering the first and the main issue before it. Counsel submitted that, as found by the trial High Court, the appellant's case was premised on his long occupation supported by series of documents tendered in evidence as exhibits but none of them proved that the appellant had a valid mining licence in that area. Neither did any of the exhibits prove that the appellant had ownership of the land in a mining area, he argued. It was his further submission that, at any rate, the 8 exchequer receipt (exhibit P3) was for rent and registration of one claim title from 1991/1992 to 1997/1998 which was never renewed. Counsel contended that the series of letters tendered in evidence including exhibit P7 did not confer any right in the appellant to occupy the land or conduct mining activities therein. Relying on section 6 (1) of the Mining Act, counsel urged that the appellant's claim in occupying the land which is a mining area without a mining licence was a tacit admission of a criminal offence under section 6 (3) of the same Act which could not have been legalised by the trial court by way of a suit for declaratory judgment upon the respondent's notice to vacate from that area. Finally, it was his further submission that, in so far as the appellant's suit was not predicated upon ownership but a declaration that he is the owner of the disputed property, his claim that he was the owner of the said land without a valid mining licence defeated his own pleading to be declared as owner by adverse possession. In rebuttal, Mr. Joseph made attempt to fault the trial court for not addressing itself on the validity of exhibit D2 in that, the special mining licence belonged to a third party. According to him, had the trial court addressed itself in that regards, it could have concluded that, the notice of eviction was but unlawful. When it was put to him whether the appellant had a mining licence, the appellant conceded, albeit with some reluctance, that he had no such licence. All the same he reiterated his prayer for judgment allowing the appeal. For a start, we wish to reiterate that since we are sitting as a first appellate court, we have the power under rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to re-appraise the evidence on record and come to our own findings of fact. That has always been the law restated in many of the Court's decisions including those referred to in the appellant's list of authorities in particular, Hosea Katampa v. Ministry of Energy and Minerals & 2 Others (supra). Interestingly, that decision is directly relevant to the determination of this appeal not only as it relates to the power of first appellate courts to re-evaluate evidence but also on the facts involved. So, we shall unhesitatingly accept the invitation and re­ evaluate the evidence on record as urged by Mr. Joseph and supported by Mr. Mwantembe. Before engaging into the exercise, we wish to clear one aspect in relation to the description of the property in dispute. This has become necessary since the appellant has been adamant that Chibugwe No. 1, 10 subject of the dispute is outside the respondent's licence (exh. D2). We shall begin this noble exercise by revisiting from no other material than Hosea Katampa's case (supra). The appellant's submissions at pages 19 and 20 relates to a challenge that SML 45/99 (exhibit D2) does not relate to the respondent, neither did the relevant Ministry conferred ownership to her thus distinguishing the application of the holding in that decision. It is plain from that decision that it related to ownership of an area of land with gold prospect known as "RIDGE-8-NO. 3" in Geita District. For ease of reference, we excerpt part of the relevant background extracted from that decision which runs as under: "At some point during the course o f the agreement between STAMICO and D.T.T., the appellant, and several other sm all-scale miners, became sub­ contractors o f the D.T.T. who purchased gold obtained from their m ining plots. The appellant also claim ed that when the Government term inated its relationship with the D.T.T., the D istrict Commissioner for Geita issued orders which allow ed the form er sub-contractors o f the D.T.T., like the appellant, to remain and continue with sm all-scale m ining activities over areas which included the disputed ridge. He further referred to several applications fo r grant o f m ining ii rights, and communications he received in return, which seemed to assure him and other sm all-scale m iners that their areas would be surveyed for purposes o f ultim ate grants o f m ining rights." [At page 2 and 3]. The title to the letter from Geita Resident Mines Officer Ref. MD- G/2/46 dated 28 May, 1997 admitted in evidence as exhibit P7 shows that it relates to an application for "Kiwanja cha Madini ya Dhahabu Chibugwe" Ridge 8 in Geita District. The same reference is made in exhibit P8 (at page 280 of the record). In our view, the two exhibits suggest that the disputed property falls under an area specified as a mining area described as Ridge 8 which was subject of an appeal in Hosea Katampa's case. What transpired in the said case reveals that, Hosea Katampa who was a small-scale miner instituted a suit against the Ministry of Minerals, Attorney General and the respondent herein for, among other reliefs, a declaration that he was the lawful owner of an area called Nyamlima Ridge-8 No. 3. Hosea Katampa's suit for ownership of the land he claimed to be his had a genesis from the same facts involving DTT's contract with the Government for supervision of small-scale mining activities over several areas in Geita District. Like here, following termination of the DTT's contract with the Government, Hosea Katampa was authorised by Geita 12 District Commissioner to remain and continue with small scale mining activities over the area which included Ridge 8. Similarly, Hosea Katampa sought to justify ownership by reference to several applications for grant of mining rights and communications received from the Government which seemed to assure him and other small-scale miners of survey of the areas in which they conducted mining activities with a view to ultimately granting them mining rights. One of the issues for determination in that suit before the trial court at Mwanza was whether Hosea Katampa was the lawful owner of the mining area known as Nyamlima Ridge - 8. The trial court answered that issue negatively due to lack of evidence proving that the plaintiff secured a mining licence. On appeal against that finding, the Court concurred with the trial court that, in the absence of any evidence by way of documentary proof in the form of prospecting licence, special mining licence, or primary licence issued under the Act, the appellant Hosea Katampa could not have succeeded in his claim. After a discussion on governing law regulating minerals in Tanzania, the Court stated the following in relation to Hosea Katampa's claim of ownership: "From the above controlling and regulating regime over m ining and minerals, it is not possible for the appellant 13 to claim m ineral rights evidenced by documentary licence, by reason only that he and other sm all-scale miners, were form erly sub-contracted [by] the DTT. It is also not legally feasible outside the licences provided for, for the appellant to acquire m ineral rights from the directives or orders o f the then D istrict Commissioner o f Geita or a letter which the D istrict Commissioner purportedly wrote, to inform the appellant and fellow sm all-scale m iners that were free to mine. It is in law farfetched for the appellant to suppose that the he can be Issued with any category o f mining licence on basis o f the adm inistrative principle o f legitim ate expectation [SC H M ID T V SEC R ET A R Y O F STATE FO R H O M E A F F A IR S - (supra)] because o f the promise o f allocation conveyed in the letter from the Permanent Secretary o f the 1st respondent (Exhibit P 2 )... "'[at page 16 and 17]. There can be no doubt from the foregoing that, although the appellant in this appeal claimed that the area in dispute fell outside the respondent's (exhibit D2), upon our own evaluation of the evidence and having regard to our decision in Hosea Katampa, Chibugwe No. 1 is within an area described as Ridge - 8 and therefore a mining area to which the Act applies. With the foregoing, we shall now turn our attention to the issue whether the trial court's finding on the first issue was a result of improper evaluation of the evidence on record. 14 It is plain from the trial court's judgment that the evidence tendered by the appellant by way of exhibits PI through P10 inclusive did not prove that he had a valid mining licence. With respect, we concur with the trial court in that finding. Upon our re-evaluation of the evidence through the documentary exhibits tendered before the trial court, we agree with Mr. Mwantembe that none of them proved ownership of the disputed property in the form of a valid mining licence. Indeed, Mr. Joseph conceded as much that the appellant had no mining licence. As submitted by Mr. Mwantembe, the appellant's insistence on the occupation of the mining area without a valid mining licence was in contravention of the provisions of section 6 (1) of the Mining Act and, at best admission of unlawful occupation and conducting mining activities therein punishable by law as a criminal offence under section 6 (3) of the Act. As we held in Hosea Katampa, mere possession of letters of assurance from the Government to the small-scale miners, the appellant included, did not confer any mining right in them. At any rate, by the appellant's own averment in para 8 of the affidavit in support of his application for injunction in Miscellaneous Application No. 121 of 2018 (at page 7 of the record) as well as para 18 of the plaint, his application for a mining right in that area was rejected by 15 the Ministry responsible for minerals vide letter dated 11 June, 1998. It is remarkable that, the appellant did not tender that letter in evidence as an exhibit no doubt deliberately. However, as the appellant's counsel would appreciate, parties are bound by their own pleadings which include annextures thereto as well as the averments in his affidavit testifying to that effect. On the whole, we have seen no reason to fault the trial court in its finding in issue No. 1 that the appellant did not discharge his burden of proof that he was lawfully occupying the disputed property. We equally agree with the trial court that the claim that the respondent had no valid licence, assuming it was indeed the case, did not make the appellant's case any better. This is so based on the settled law that the plaintiff's duty to prove his case is not diluted by any weakness in the defendant's case. See for instance, Paulina Samson Ndawavya v. Theresia Thomas Madaha, (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019, TANZLII). Granted the licence in exhibit D2 belonged to a third party or that it was a result of enlargement of the original licence as claimed by the appellant, that did not prove that the appellant was occupying the disputed property legally. That means, his case was bound to fail in any event. In the upshot, we find no merit in ground one and having so held, we see no need discussing other grounds which were dependent on the determination of ground one. Consequently, we dismiss the appeal for lack of merit. The respondent shall have her costs in this Court and the trial court. DATED at MWANZA this 17th day of July, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 18th day of July, 2024 in the presence of Dr. George Mwaisondola holding brief for Mr. Leonard Joseph, learned counsel for the Appellant and Dr. Mwaisondola, learned counsel for the Respondent, is h :rue copy of the original. a M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 17