MALALAMA VS

IN THE HIGH COURT OF TANZANIA (SUB - REGISTRY OF GEITA) AT GEITA LAND APPEAL NO. 15973 OF 2024 (Appeal from the decision dated 19 April 2024 from the District Land and Housing Tribunal for Geita at Geita, in Land Application No. 30 of 2014, Hon. E. Masao- Chairman) GEITA GOLD MINING LTD --------------------------------APPELLANT VERSUS DANIEL MALAMALA--------------------------------------RESPONDENT JUDGMENT Date of last Order: 06/11/2024 Date of Judgment: 15/11/2024 K. D. MHINA, J. The Court of Appeal in Tanzania Revenue Authority vs. Tango Transport Company, Civil Appeal No. 84 of 2009 (Tanzlii) held that; “The law is well settled, and Mr. Bundala is perfectly correct that a question of jurisdiction can be belatedly raised and canvassed even on appeal by the parties or the court suo moto, as it goes to the root of the trial (See, Michael Leseni Kweka; Kotra Company Ltd; New Musoma Textiles Ltd. cases, supra). Jurisdiction is the 1|Page bedrock on which the court's authority and competence to entertain and decide matters rests”. In the instant appeal, while composing a Judgment, I discovered the controversy on the issue of the jurisdiction of the District Land and Housing Tribunal (“The DLHT”). The controversy is whether the DLHT had the jurisdiction to hear and decide the dispute between the parties. Therefore, I recalled the parties to address this Court on that jurisdictional issue; One, to keep alive the rule of natural justice on the right to be heard (audi alteram partem). See Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council, Civil Appeal No. 81 of 2017 (Tanzlii), where the Court of Appeal held that; “On the authority of the decisions cited above, we are certain in our mind that the High Court erred in basing the decision of the case on the issue raised suo motu without according the parties the right to be heard on that issue. In John Morris Mpaki (supra), we held that any decision affecting the rights or interests of a party is a nullity even if the same decision would have been arrived at had the affected party been heard”. 2|Page Two, despite the fact that the issue of jurisdiction must arise by clear implication out of the pleadings, there must be submissions/material evidence from the parties for or against it. See in Yusuf Khamis Hamza vs. Juma Ali Abdallah, Civil Appeal No. 25 of 2020 (Tanzlii), where the Court of Appeal held that:- “Of course, we are alive with the settled position of the law that time limitation goes to the jurisdictional issue of the court and that it can be raised at any time, even at the appellate stage by the court, but for it to be noted and raised it would require material evidence to be placed before the Court”. What triggered this Court to raise the question of jurisdiction was the claim in the application (plaint) of the appellant to refer the dispute to the DLHT and pray to be declared a lawful owner of the land in dispute described as Geita Hill and area and based on the special Mining Licence No. 45/1999. By way of background, the brief facts which led to the institution of Application No. 30 of 2014 at the DLHT, the applicant alleged that after acquiring the mining licence in 1999, later on, sometime in 2013/2014, they compensated the previous owners of the land who vacated from the area. 3|Page However, in 2024, the respondent trespassed into the land in dispute for about 11,951 square meters, commenced farming activities, and erected structures therein. This triggered the appellant to seek relief from the DLHT and prayed for the following reliefs; i. A declaratory order that the applicant is the lawful owner of the disputed land and that the respondent be declared a trespasser. ii. An eviction order be issued against the respondent from the suit area. iii. Payment of general damages as may be assessed by the Tribunal and iv. Costs. At the trial, the appellant's witnesses briefly testified as follows. PW1, the appellant’s community liaison officer, stated that after the appellant was granted a mining licence for conducting mining activities at Geita Hill and Kaluluma area, the customary land owners, including the respondent, were compensated. However, the respondent invaded another piece of land under the jurisdiction of the Tanzania Forest Agency (TFA). PW2, a forest conservation officer from TFA, testified that the land in dispute was a reserve forest under the jurisdiction of TFA. The land in 4|Page dispute/ forest was previously gazetted by G.N No. 110 of 1953, and after re-survey, it was gazetted by G.N No. 717 of 2018. However, the appellant was granted a mining licence for conducting mining activities However, the appellant was granted a special mining licence for conducting mining activities in the area. On his side, PW3, the appellant’s accountant, stated that the respondent was among the land owners who were compensated, and he was paid through CRDB Bank Geita Branch. The respondent who testified at DW1 testified that he was the lawful owner of the land after purchasing it in 2000 in the presence of DW3, who signed the sale agreement as a witness. He further stated that he had four farms, but he was compensated for three farms. He said he was never compensated for one farm, which is now disputed land. DW2, a former street chairman, testified that the respondent was compensated for three farms. But his fourth farm was never surveyed and compensated. In the end, the DLHT dismissed the appellant’s claims and declared the respondent as the lawful owner of the land in dispute. Undaunted, the appellant approached this Court by way of appeal with the six (6) grounds of appeal. 5|Page As previously alluded to, when composing the judgment after parties filed their written submissions for and against the appeal, I discovered the controversy on the issue of the jurisdiction of the DLHT. At the hearing of the issue I raised suo motu, the appellant was represented by Mr. Silwani Galati Mwantembe, learned advocate, while the respondent was represented by Mr. Laurent Bugoti, also the learned advocate. Mr. Galati was the one who set the ball rolling by submitting that according to section 33 (1) (a) and (b) of the Land Disputes Courts Act (“the LDSA”), the DLTH had jurisdiction to try the dispute subject to this appeal. He explained that section 33 (1) (a) confers jurisdiction on the DLHT to try all proceedings under the in all proceedings under the Land Act, the Village Land Act, the Customary Leaseholds (Enfranchisement) Act, the Rent Restriction Act and the Regulation of Land Tenure (Established Village) Act. Further, subsection (1) (b) confers jurisdiction in all other proceedings relating to land under any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law. 6|Page Therefore, he argued that in view of the above provisions of law, in a case whereby the applicant is claiming that the respondent trespassed in its land or mining area and commenced farming activities therein erecting structure, the DLHT had jurisdiction to try the case because the case is relating to land as provided under section 33 (1) (a) and (b) of the Land Disputes Courts Act. He also submitted that regarding the reference of the dispute to the Commissioner of Minerals, the powers given to the Commissioner under section 102 of the Mining Act are over disputes relating to persons engaged in prospect or mining operations among themselves or in relation to third parties. While this is not a case where two parties are in dispute regarding the mining rights or the boundaries of the land in dispute. He narrated that what the Commissioner can do is to inquire and make decisions. So, this issue is not between two persons engaging in mining operations. Therefore, it is not a kind of dispute to be referred to the commissioner, nor can the commissioner make an inquiry. 7|Page Furthermore, he submitted that on reading the provision of section 102 of the Mining Act, even if this matter could be referred to the commissioner, that section does not ouster the jurisdiction of the DLHT. Mr. Mwantembe said it is because the jurisdiction given to the commissioner, if any, is not exclusive because the word may is used in section 102 of the Mining Act, while section 33 of the LDSA has the word shall. Therefore, by referring the dispute to the DLHT, the applicant filed it with the proper forum with jurisdiction to try the case. He concluded by reminding this Court that, for the court to determine the jurisdiction, it has to look into the plaint. Therefore, it does not matter what happened during the hearing or thereafter. In response, Mr. Bugoti submitted that under paragraph 6(a) (i) of the application, the appellant claimed vide mining licence no. 45/1999, that he was the owner of the mining licence for areas of Geita Hill and Kukuluma. Further, he submitted that sections 22 (e) and 119 (1) of the Mining Act, read together with rule 3 (1) of the Mining Dispute Resolution G.N 323 published on 16 April 2021, the appellant was required to lodge the dispute 8|Page with the Mining Commission if the respondent trespassed into the mining licence. He explained that under the mentioned provisions of law, the Commission has jurisdiction to decide a dispute on prospect or mining operations and third parties. Therefore, the DLHT had no jurisdiction to determine the dispute between the parties in this appeal. In a brief rejoinder, Mr. Mwantembe reiterated his submission in chief. He also insisted that the disputes that are supposed to be referred to the commissioner are those relating to the mining rights between two contesting parties. Commenting on the cited provisions of law by Mr. Bugoti, he stated that the provisions do not give exclusive jurisdiction to the commissioner. In other words, it does not oust the jurisdiction given to the DLHT under section 33 of the LDSA to determine disputes relating to land. Further, the regulations cited were by-laws and, therefore, irrelevant. Having heard the counsel for both parties on the pertinent issue of jurisdiction, I will start with the reminder raised by Mr. Mwantembe that, for the court to determine the jurisdiction, it has to look into the plaint, which I 9|Page agree partly. This is because, in a number of cases, it was held that points of law, including jurisdiction, must arise by clear implication out of the pleadings. Therefore, it is not only the plaint but the pleadings generally. The Court of Appeal in Salim. O Kabora vs. Tanesco and two others, Civil Appeal No. 55 of 2014 (Tanzlii) held that; “The above excerpt tells it all that before a court dwells into the determination of any matter brought before it, it is elementary that it should, in the first place, satisfy itself that it has the requisite mandate to determine the matter. Since the appellant, in his plaint, disputed the respondent's claim for the outstanding debt and had instituted a suit in the High Court to challenge it, then the issue of jurisdiction arose by clear implication out of the pleadings”. Further, in Hotels and Lodges (T) vs Attorney General and Chapwan Hotels Limited (2013) TLR 250, it was held that a pure point of law must be elucidated from what has been pleaded or implied from the pleadings. See also Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] E.A 696. From above, the question is, what are the pleadings? The term pleading is defined under Order VI Rule 1 of the Civil 10 | P a g e Procedure Code, 33 R: E 2019 (“the CPC”) to mean; “a plaint or a written statement of defence (including a written statement of defence filed by a third party) and such other subsequent pleadings as may be presented in accordance with rule 13 of Order VIII”. Further, Order VII Rule 14 of the CPC requires documents to be relied upon by parties to be attached in the pleadings form part of the pleadings. That order provides that; “14. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. From the above provisions of law, it is clear that pleadings mean the plaint, written statement of defence and reply to the written statement of defence. Also, the documents attached or annexed to the pleadings form part of the pleadings. See also Airtel Tanzania Limited vs. Ose Power 11 | P a g e Solutions Limited, Civil Appeal No. 206 of 2017 (Tanzlii). Looking at the application filed at the trial DLHT, I find the following; One, Paragraph 6 (a) (i) it was claimed that; The applicant is a lawful owner of all that piece of land known as Geita Hill and Kukuluma area situated in Geita under a Special Mining Licence No. 45/1999. Two, a report dated May 2015 by TFA relied upon by the appellant. In that report, it was indicated, one, that the disputed land is owned by TFS; two, that the respondent trespassed into the disputed land, waiting for the appellant to compensate him when starting mining activities. In view of the above, it is clear by implication out of the pleading that the land in dispute the land in dispute is owned by TFS while the appellant has the mining rights. Therefore, the questions are whether mining rights under the circumstances can confer ownership of the land to the licence holder and give rise to a land dispute under the land laws and whether the DHLT had jurisdiction over the land dispute based on the special mining licence. On this, I will start with section 2 of the Land Act, Cap 113, which defines 12 | P a g e the term land. The provision defines land to; “includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water”. In short, land rights exclude minerals and petroleum forming part of or below the surface. Further, in our laws as per sections 3 (2) of the Land Disputes Settlement Act and 167 (1) of the Land Act, the courts and tribunals vested with the jurisdiction of all land matters as per the definition of land under section 2 of the Land Act are the Court of Appeal, High Court, District and Land Housing Tribunal, Ward Tribunals and the Village Land Council. In his submission, Mr. Galati stated that the DLHT had jurisdiction because of section 33 (1) and (2) of the Land Disputes Settlement Act. The section read as follows; 33.-(1) The District Land and Housing Tribunal shall have and exercise original jurisdiction- 13 | P a g e (a) in all proceedings under the Land Act, the Village Land Act, the Customary Leaseholds (Enfranchisement) Act, the Rent Restriction Act and the Regulation of Land Tenure (Established Village) Act; and (b) in all such other proceedings relating to land under any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law. From above, it is imperative to construe the real intention of the cited provisions of the law to get the real purpose of the law in terms of when the renewal can be applied. This is because it is a cardinal principle in the construction of the statute that its provisions must be read together to make any construction of a particular provision to fit into the purpose and object of the statute. Having scrutinized the cited provisions of law, I have the following; Section 33 (1) (a) categorically states that the jurisdiction is overall proceedings under the Land Act, the Village Land Act, the Customary Leaseholds (Enfranchisement) Act, the Rent Restriction Act and the Regulation of Land Tenure (Established Village) Act. Therefore, it has nothing to do with disputes over the land based on mining licences. 14 | P a g e On the other hand, section 33 (1) (b), which confers jurisdiction in all such other proceedings relating to land under any written law in respect of which jurisdiction is conferred on a District Land and Housing Tribunal by any such law, I have the following; one reading together with section 2 of the same Act, the DLHT has no jurisdiction to determine a dispute based on a mineral licence. Two, the law dealing with minerals and minerals licences is a Mining Act, and I am aware that the dispute was filed way back before the enactment of the Mineral Act of 2019. Therefore, the provisions cited by Mr. Bugoti, sections 22 (e) and 119 (1) of the Mining Act 2019, and rule 3 (1) of the Mining Dispute Resolution G.N 323 published on 16 April 2021, are not applicable, hence irrelevant in the determination of the instant matter. However, having gone through the relevant law, which is the Mining Act of 2010, I still find no provision of law which confers jurisdiction to the DLHT to determine the dispute arising out of the mining licence. On further reading of that law, I find that the Commissioner of Mining was mandated to inquire and decide all disputes in relation to mining operations. The section provides that; 15 | P a g e 102.-(1) The Commissioner may inquire into and decide all disputes between persons engaged in prospecting or mining operations, either among themselves or in relation to themselves and third parties other than the Government not so engaged, in connection (a) the boundaries of any area subject to a mineral right; (b) the claim by any person to be entitled to erect, cut, construct or use any pump, line of pipes, flume, race, drain, dam or reservoir for mining purposes or to have priority of water taken, diverted, used or delivered, as against any other person claiming the same; (c) the assessment and payment of compensation pursuant to this Act; (d) or any other matter which may be prescribed. [Emphasis provided] In the event any party is aggrieved by the decision of the Commissioner, the remedy is to appeal to the High Court. That remedy was provided by section 104 of the Mining Act of 2010, and it is provided by the current Mining Act of 2019 under section 121. Further, under the Mining Act of 2019, the mandate of the Commissioner to solve disputes was retained under sections 22 (e) and 119 (1) of the Act. 16 | P a g e Therefore, having discussed as above, the DLHT had no jurisdiction to determine the dispute between the parties on the land ownership under land laws based on the mining rights conferred to the appellant by a special mining licence. In conclusion, since I found that the DLHT had no jurisdiction to determine the dispute between the parties, I nullify the DLHT proceedings, quash the judgment and set aside all orders given. The issue of jurisdiction was raised suo motu by this court, therefore I order no costs. It is so ordered. K. D. MHINA JUDGE 15/11/2024 17 | P a g e Court: Right to appeal explained. K. D. MHINA JUDGE 15/11/2024 18 | P a g e