federation of mines associations of tanzania others vs ms africa gem resources afgem others 2001 tzhc 30 22 august 2001

1 IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MISC. CIVIL CASE NO.23 OF 2001 1. FEDERATION OF MINES ASSOCIATIONS ) OF TANZANIA ) 2. THE ARUSHA REGIONAL MINES ASSOCIATION )......... APPLICANTS 3. FEMATA MINERS CORPORATION LTD ) VERSUS M/S AFRICA GEM RESOURCES (AFGEM) & 7 OTHERS.... RESPONDENTS RULING MSUMI. JK: According to its heading, this petition has been filed under Articles 14,23,24,27 and 30(1) of the Constitution of the United Republic of Tanzania, sections 4,5,12 and 13 of the Basic Rights and Duties Enforcement Act No.33 of 1994; sections 68(e) and 95 of the Civil Procedure Code 1966 and any other enabling provisions of the law. However, the petition is for the enforcement of the basic rights as stipulated in Part III of chapter I of the Constitution, specifically articles 12 and 29. The petitioners are representative bodies of miners while the first six respondents are connected in different capacities with commercial mining of tanzanite gemstones at Merelani mines within Arusha Region. Though he is being sued in his personal capacity, the seventh respondent was at the material time Minister of Energy and Minerals. The conflict which is the subject matter of 2 this petition arises from the respondents’ connection in the mining operation of tanzanite gemstone at Merelani mines. The petitioners allege a number of wrongs against the respondents in respect of the said mining operation and pray for declaratory reliefs and damages. Among the alleged wrongs and consequential reliefs sought are that the seventh respondent acted ultra vires in granting a Special Mining Licence to the third respondent and as such the said grant be declared null and void, that the third respondent be ordered to halt mining operation in Block C o f the mines and instead the said area be granted to the petitioners after duly complying with the relevant provisions of the law. There is also a prayer for an order for exhumation of dead bodies of small-scale miners allegedly buried alive by the first, second and third respondents in various pits dug in Block C of the mines in the course of filling up exhausted pits. Besides controverting the petition on merits, respondents have raised some points of law against it by way of preliminary objections. The points raised by first six respondents in their preliminary objection are: 1. That essential steps in the filing and prior to hearing of this petition have been skipped, and therefore the petition is incompetent and ought to be struck off with costs. 2. The 1st - 6th respondents are wrongly joined to the petition. Their names ought to be struck off with costs. 3 3 The matters subject of the petition are not amenable to adjudication before the High Court exercising its powers to enforce the provisions of Articles 12 to 29 of the Constitution of the United Republic of Tanzania 1997. 4. On the allegations in the petition as filed, the plaintiffs have alternative and adequate means of redress for the alleged contraventions. 5 The petition is merely superfluous and vexatious it must therefore be dismissed with costs. As for the seventh respondents, his preliminary objection is based on the following points: 1. That the petition is incompetent in that it is not accompanied by an originating summons as required by law and thus cannot be the basis for the application for temporary injunction. 2. The seventh respondent is wrongly impleaded in the petition since in granting the Special Mining Licence he was performing his official functions as the Minister responsible for mining affairs in the Government of the United Republic of Tanzania. 3. That the facts alleged do not constitute any constitutional matter and thus the petition and the application are wrongly brought. In their written submissions, counsels for all the respondents made lengthy elaborations o f these points. As far as the first point is concerned counsels relied on the provision o f section 5 o f the Basic Rights and Duties Enforcement Act No.33 o f 1994 which states: 5. An application to the High Court in pursuance o f section 4 shall be made by petition to be filed in the appropriate regishy o f the High Court by originating summons. It is a fact that no originating summons has been filed ,n these proceedings, respondents are therefore arguing that the petition is incompetent. Arguing on behalf o f the first six respondents in support o f the second point, counsel submitted that the petition is incompetent in so far as it seeks redress for breach o f human rights for which respondents being private persons cannot be held answerable. If the applicants are entitled to any reliefs for these alleged breaches should be against the State. The argument in support o f the third issue ra.sed by the first six respondent is similar to that submitted m support o f the third point raised by the seventh respondent. In respect o f both points the counse.s are contending that the subject matter o f the petition does not raise any constitutional issue as described under articles 12 to 29 o f the Constitution. In other words counsels are arguing that proceedings for enforcement o f duties and basic rights must be founded on the breach o f articles 12 to 29 o f the Constitution. As far as the fourth point raised by the first six respondents is concerned it is argued that there ls adequate altern ate means by which applicant, could get redress for the alleged wrongs. For example, it is argued that applicants could get the prayed exhumation order through criminal proceedings with or without involving the police. In the elaboration o f his second pomt, seventh respondent is argumg that Since he commuted the alleged wrong o f issuing vo.d licence m Ms capacity as a Minister responsible for mines, he cannot be sued in his personal capacity. It is appreciable that counsel for the applicants filed fairly detailed wntten submission in reply to the preliminary objections. However, rather than summarize generally, we will refer this submission in the course of determination o f each point o f the preliminary objection. Before considering the arguments for and against the preliminary objection we wish to make the following general observation. We are quite aware o f the well established modem approach to human rights matters that p r o v is o s o f law relating to human rights have to be construed liberally, with elasticity, and not restnctively or rigid,y. Bemg grave matters, allegations o f human right breaches should not be dismissed on mere rigidity o f the law. This does not, however, mean that a party in a human right case can d.sregard compliance o f legal requirement with impunity. The mentioned liberal approach is not applicable if it renders a provision o f law nugatory. 6 As noted earlier, the first issues raised by the first six respondents and seventh respondent are similar. I, is contended that the petition is incompetent because it is not accompanied by originating summons as required under section 5 o f the Basic Rights and Duties Enforcement Act. We find no difficulty in overruling these objections in view o f the decision in the Registrar C iv . A p p No. 82 o f 1999 (unreported) in which the Court o f Appeal held that the procedures o f a petition and originating summons under section 5 o f the Act are alternative procedures. It is not correct view, as submitted by the respondents in the present case, that both procedures must be complied with cumulatively. The arguments in support o f the second point raised by the first six respondents require more information than what is available in the pleadings. Evidence on the actual identities o f the respondents .s required in order to determine whether they have been m,sJ0,ned. On this ground we are o f the view that this issue cannot be raised and determined by way o f a prelimina^ objection. Accordingly this point is overruled. Points number three and four o f objection raised by the first s.x respondents and point number three raised by the seventh respondent are basically the same. What is substantially being contended in these points is that the alleged wrongs narrated in the petitions are not constitutional issues which are subject to persons’ anus”. The referred article 14 says: 14. Every person has the right to live and tr> • 10 nve and to the protection o f his life by the society in accordance with law. However ,lberal,y the p r o v is o s o f this art.de are construed, they cannot he satd * ^ v e been contravened by the said wrongs a„eged ,n paragraph 12 o f the petition. All the wrongs alleged in paragraphs „ and 12 are crimina, offences o f economic sabotage and corrupt,o, As far as the p r o v is o s o f the Act are concerned these allegations are not amenable. On the other hand the al.egations contained in the other paragraphs have not been specified the constitutional provisions which they contravened. Hven without this specification, these g ons are basically not constitutional matters. On this ground, we respectfully sustain point o f objection number three ra.sed by the first six respondents and point number three raised by the seventh respondent The basis for the fourth and fifth points o f objection raised by the firs, six respondents is the provisions o f section 8(2) o f the Act which says: 8(2) the High Court shall not cxerc.se its powers under this section if it is satisfied that adequate means o f redress for the contravention alleged are or have been available to the person concerned under any Other law , or that the application is m erely frivolou s or vexatiou s. It is notable that paragraphs 11, 14 15 and Ifi nf ti, •• f . 14, 15 and 16 o f the petition allege criminal Offences ranging from simple assault, corruption, economic sabotage and murder. There ,s no indication ,n the petition that cogent reports have been made to police authorities for steps to be taken and that no appropriate steps have been taken in furtherance o f the report. As regards paragraphs 12 and 13, the allegations are tortious acts o f assault and negligence which are entertainable m an ordinary suit. Similarly the allegations in paragraph 17 could adequately be dealt with in ordinary proceedings for revocation o f mming licence for infringement o f tions o f the licence. The allegation in paragraph 27 is libellous hence actionable in an ordinary suit. Generally all the declatoiy reliefs and damages P y in the petition may be sought by way o f ordinary suit. We accordingly sustain the fourth point o f objection raised by the first s,x respondents that this petition is incompetent because the petitioners have adequate aUenrative means Of redress for the alleged complaints. However despite this finding we are not convinced that the petition is superfluous and vexatious. Accordingly the fifth pomt o f preliminary objection raised by the first six respondents is overruled. Lastly, let us now consider the second ground o f the seventh respondent's preliminary objection. There is no doubt that seventh respondent issued the alleged offensive Special Mining Licence m his capacity as the Mimster responsible for mines, Indeed he acted m accordance with the sta tu to . power vested in him as a Minister and not in his persona, capacity. In sumg the seventh 10 respondent in his personal capacity, counsel for the applicants ,s relying on the d— 1993 TLR 60. The plaintiff in that case sued the second respondent who was a Government M a ste r for defamation arismg from words uttered by him in the course o f his busmess. It was argued as prelunina^ objection that because second defendant uttered the alleged defamatoty words in the course o f discharging his al dUtleS’ hC C° Uld n0t be Sued m his Personal capacity rather the suit Should have been against the C o v e n a n t . The court o v e ^ l e d this argument and stated as a general rule t o any public officer including a minister can be sued for tort based on the acts o f such officer ,n the course o f discharge o f h,s duties Similar view was held by the Court o f Appeal in M e , Lazai, v * £ « Civil Appeal No.2 o f 1986 (unreported). On the same issue there is also another decision o f this court m L M a ta fiu ^ ^ [l97?] LRT 10. The plaintiff m this case sued the defendant who, at the material time was Regional Commissioner, for closing his bar business premises. In upholding the defendant’s contention that ,t was legally incompetent to be sued in his personal capacity, Mfalila J, as he then was, said: “The third difficulty relates to the competency o f this application. I take i, that for the pmpose o f the Government Suits Ordinance Cap 5 this application is a suit. It is alleged in the affidavit that the respondent Songambele closed the a p p l e t ' s bar and tenantable premises. I cannot imagine how Are respondent could have done th,s in his personal capacity. He must have used his authority as a Government Officer to effect whatever he did so that the final responsibility lay with the Government. For mstance if indeed the respondent close these two premises, and he were either transferred or removed from office tomoirow, he wou.d not as Songambele have the authority t0 re-open them, even if he wanted, or was ordered so In the present case, the petitioners are not suing the seventh respondent for tort. The petition has been puiportedly brought under the procedure provided in the Basic Rights and Duties Act. Hence appropriately as the seventh respondent’s act o f .a n tin g the a„eged offens.ve Special Mining Ucence ,s concerned, applicants are praying for declatoiy order that the said licence is null and void. Since the suit against the seventh respondent is no, for tort, ,he ,wo dec.sions in Lazarj> ro and cases are no, appl.cable in ,he presen, su ,. In other words our understanding o f the law as restated in these cases is tha, . publlc officer including a Government Minister is personally answerable for tort arising from his acts done in the course o f discharge o f official duties. As noted earlier <ha, ,he cause o f action against the seventh respondent is not tortious hence he cannot be sued ,n his personal capacity. Indeed the declatory reliefs sought by the ourt proceedings without impediment c,„h Prosecuted m ordinary or cum bersomeness. Furtherm ore we are o f the view that it 18 n0t leS ^ y proper for the seventh respondent to be sued in his P h o n a l capacity for a nontortioussu.t Forthese reasons the petition as a whole is incom petent and it is accordingly struck out with costs, ' / /' //; / .'Lw* '-uaaSa *SgP'A* &&& --------JUDGE 22/8/2001 For the petitioners: For the lst-6th respondents' Rweyemamu, For the 7th respondent: Mujulizi Mdamu