GL JOSUE JB JOEL LIMITED

IN THE HIGH COURT OF TANZANIA (DODOMA SUB-REGISTRY) AT DODOMA DC. CIVIL APPEAL NO. 33 OF 2023 [Appeal from the Judgment and Decree of the Mining Commission at Dodoma (Dr. Arnold A. Gesase) dated the 2&h day of September, 2022 in Dispute No. 4 o f2022] GL JOSUE & JB JOEL LIMITED................................. APPELLANT VERSUS SHANTA MINING COMPANY LIMITED...................RESPONDENT JUDGMENT 4hJune & l9 hJutyf 2024. MUSOKWA, J. The undisputed facts of this appeal are simple. On 12th July 2004, the appellant obtained ownership of three prospecting licences namely PLs No.2382/2003, No. 2383/2003, and No. 2384/2003 (hereinafter referred to as "the PLs") located in Ikungi District in Singida Region. Due to financial constraint and the challenge of technical knowhow to undertake the project, the appellant formally sought the assistance of the respondent herein. As the result, on 7th November 2008, the appellant and respondent executed a Prospecting and Joint Venture Option Agreement, hereinafter referred to as "the agreement". The respondent agreed in writing to provide financial resources for exploration activities in the PLs, subject to the terms and conditions of the agreement including payment of periodic retention fees, and with an option of acquiring 90% interest in the PLs. Similarly, on 15th January 2015, the appellant and respondent signed an "Addendum to the Prospecting and Joint Venture Option Agreement", hereinafter referred to as the "Addendum" The said addendum provided for payable retention fees, among other things. According to the agreement, the 90% interest would be acquired by respondent upon fulfillment of a number of conditions. These conditions included production of evidence of having incurred a minimum expenditure of United States Dollar four hundred fifty thousand (USD 450,000); production of updated measured resources; and production of a bankable feasibility study. Feeling aggrieved with the implementation of the agreement, on 19th April 2022, the appellant invoked the Mining (Dispute) Resolution Rules, 2021 (hereinafter referred as "Mining Rules of 2021") and filed a Memorandum of 2 Complaint before the Mining Commission against the respondent alleging breach of the agreement and prayed for the necessary reliefs thereof. The appellant was dissatisfied with the judgment and decree of the Mining Commission (Dr. Arnold A. Gesase), hence this appeal. Before this court, the appellant filed a Memorandum of Appeal containing a total of 16 grounds of appeal. However, after dispassionately studying the entire court record, the judgment of the Mining Commission, the grounds of appeal and the grounds of cross objection to the appeal, I am settled in my mind that the determination of this appeal rests entirely on the 3rd and 12th grounds of appeal. The said grounds of appeal are reproduced as follows: - 3. The Mining Commission wrongly likened the final submissions o f the parties as evidence instead o f delving into the evidence that were supposed to be produced and received before it; and 12. That the Mining Commission erred to one-sidedly use and rely the alleged Flexicadastre Portal o f the Mining Commission in its judgment without affording the Appellant and even the Respondent the opportunity to look at the same and give its views on it and thus he based his decision in total violation o f the principles o f naturaljustice. [emphasis added] As indicated in the 12th ground of appeal, the respondent acting under Order 39 Rule 22(1) and (2) of the Civil Procedure Act, Cap. 33 R.E 2019 (CPC) 3 sought leave and was allowed to file a memorandum of cross objection to the appeal. The said Order 39 Rule 22(1) and (2) of the CPC provides that:- (1) Any respondent, though he may not have appealed from any part o f the decree, may not only support the decree on any o f the grounds decided against him in the court below, but take any cross-objection to the decree which he could have taken by way o f appeal, provided he has filed such objection in the Court within one month from the date o f service on him or his advocate o f notice o f the day fixed for hearing the appeal, or within such further time as the Court may see fit to allow. (2) The cross-objection shall be in the form o f a memorandum and the provisions o f rule 1, so far as they relate to the form and contents o f the memorandum o f appeal, shall apply thereto, [emphasis added] The respondent's grounds of cross objection essentially support this appeal and are equally reproduced hereunder: - 1. The Mining Commission erred in law by delivering a judgment without conducting a hearing hence infringement o f a right to be heard. 2. The Mining Commission erred in law by relying on evidence that was not properly tendered in accordance with Rule 9 o f the Mining (Dispute Resolution) Rules, 2021. [emphasis added] In terms of reliefs sought by parties in this appeal, the respondent prayed for an order to quash and set aside the judgment and decree of the Mining Commission and an order for trial de-novo. On the other hand, the appellant prayed for the appeal to be allowed in its entirety and the proceedings of the Mining Commission be declared a nullity for being tainted with material irregularity and violation of the principles of fair trial. Notably, this appeal was argued by way of written submissions and the parties complied with the court scheduling orders. Starting with the 3rd ground of appeal, it is alleged that the Mining Commission wrongly likened the final submissions of the parties as evidence instead of delving into the evidence that were supposed to be produced and received before it. According to the appellant, on 15th July 2022, the Mining Commission ordered the respondent to give evidence by way of witness statement under oath. However, the respondent failed to submit the witness statement under oath as ordered by the Mining Commission. Thus, the matter ought to have been heard ex parte. The appellant made reference to the recorded proceedings of the Mining Commission in support thereof. Further, the appellant cited the cases of Africarriers Limited vs. Shirika la Usafiri Dar es Salaam Limited and Another, Case No. 50 of 2019 and John Mwansasu vs Republic, Criminal Revision Case No. 8 of 2000 (all unreported); which generally requires the court orders to be obeyed. 5 In addition, the appellant submitted that if parties are allowed to act in total disregard of the court orders, the court business will be rendered uncertain and will lead to inefficiency in the administration of justice. Therefore, disobedience of court orders should attract sanctions. The appellant cited the case of Estate of the Late Peter Kisumo vs Salum Peter Kisumo, Miscellaneous Application No. 441 of 2018 and Idahya Maganga Gregory vs Judge Advocate General Court, Criminal Appeal No. 4 of 2002 (all unreported) to support her stance. Thus, the appellant invited this court to hold that since the respondent never submitted the witness statement, its defence, if any, was wrongly considered and the whole defence was supposed to be struck out and the matter ought to proceed ex parte. Moreover, the appellant submitted that final submissions of the parties are not evidence. But the Mining Commission wrongly treated the final submissions of the respondent and its annexes as evidence. Reference was made to the Court of Appeal of Tanzania (CAT) case of Luhumbo Investment v. National Bank of Commerce & two Others, Civil Appeal No. 503 of 2020 (unreported). 6 The appellant's 3rd ground of appeal deliberated above is similar to the respondent's 2nd ground of objection that the Mining Commission erred in law by relying on evidence that was not properly tendered in accordance with Rule 9 of the Mining Rules of 2021. Submitting on this ground which was in support of the appellant's appeal, the respondent stated that the Mining Commission failed to give an opportunity for the parties to call theirs witnesses, give testimony and tender evidence. The respondent reproduced the relevant part of the proceedings of the Mining Commission to justify her position. Again, it was submitted by the respondent that even if the witness statement under oath would have been filed timely, yet, the right to cross examine the witness was equally curtailed by the Mining Commission. The curtailment is indicated by the order dated 15thJuly, 2022 which required the parties to file their written submissions prematurely. Similarly, the appellant's Managing Director who was before the Mining Commission being one of the witnesses, was also not cross examined. The case of Jephuter Musa Gumbala vs Tanzoz Mineral Limited, High Court Civil Appeal No. 29 of 2022 (unreported) was cited by the respondent in support of her position. The said case deliberated on Rule 8,9 and 10 of the Mining Rules of 2021 with regard to the procedures relating to the witness, production of documentary evidence and the hearing in general. The respondent cited another case of Abbas Serrals and another vs Abdul S.H.M Fazaibery, Civil Application No.33 of 2002 (unreported) with regard to the need to afford parties the right to be heard before any decision is reached. After analysis of the submissions by both parties on this ground of appeal, the central issue for determination by this court is whether or not the hearing was fair. The proceedings of the Mining Commission dated 15th July, 2022 are relevant in this regard. Upon opening remarks, the Arbiter stated that since it was the first hearing day and the judgment cannot be pronounced, it was therefore ordered that the hearing to proceed. The Arbiter stated further that the respondent's witnesses can either appear during the next hearing or submit witness statements under oath. In reply thereof, the respondent promised to submit witness statements under oath, whereby it was ordered that the same be shared with the appellant before the next hearing date. On the same day, the records of the Mining Commission state further that: - "Arbiter: As we come to the dose o f the hearing, I make an order that parties should submit written submissions on the issues to the Mining Commission on 29th July 2022 before 15:30 hours. The submissions should be supported by legal authorities. I f there is any document that was not submitted to the Commission and is critical to either party; parties can submit them under the condition that the document should be shared with the other party one week before submission to the Commission. After receiving the submissions, we will notify you about the date o f judgm ent"[emphasis added] Undoubtedly, the proceedings before the Mining Commission were flawed, to say the least. The said proceedings violated Rule 8, 9 and 10 of the Mining Rules of 2021 relating to the procedures to call witnesses, production of documentary evidence and the hearing in general. For the purpose of clarity, the said Rules are reproduced as follows: - "Rule (8) (1) On the day fixed for hearing o f the dispute, the complainant shall state the case in support o f the issues raised in the memorandum o f complaint. (2) The respondent shall then state his case and may address the Commission generally on the whole case. Rule 9 (1) The parties or their representatives shall produce at the first hearing, documentary evidence o f every description in their possession or power, on which they intend to rely on and which has not already been submitted to the Commission, and any document which the 9 Commission has ordered to be produced and the Commission shall take account o f the evidence so produced. (2) Documentary evidence in the possession or power o f any party which has not been produced to the Commission at the first hearing shall not be produced at a subsequent hearing unless good cause is shown; to the satisfaction o f the Commission, for the failure to produce the document at the first hearing. (3) Where the Commission admits a document not produced at the first hearing, he shall record the reason for so doing. Rule 10 (1) The parties may call persons whose attendance is required either to give evidence or produce documents in support o f their case, Provided that where such person fails to appear, the hearing shall continue without such person. (2) The commission may if deems fit, call any person to testify on any matter involved in the complaint."[emphasis added] From the quoted Rules, on the day fixed for hearing of the dispute, both parties are required to state the case in general. In addition, the parties or their representatives shall produce at the first hearing, documentary evidence of every description in their possession or power. Any subsequent production of evidence should be based on good cause, to the satisfaction of the Mining Commission. Again, the parties may call a person whose attendance is required either to give evidence or produce documents in support of the case. 10 Unfortunately, the proceedings before the Mining Commission fall short of the requirements of the cited law. It should be noted as well that the respondent's 1st ground of cross objection is relevant in that the Mining Commission erred in law by delivering a judgment without conducting a hearing. Thus, this was an infringement of the right to be heard. In this regard, the constitutional right to be heard; or the fair hearing was evidently violated by the Mining Commission. The constitutional principle on the right to be heard or the fair hearing was adequately deliberated in the CAT case of Severo Mutegeki and another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (Duwasa), Civil Appeal No. 343 of 2019 (unreported). The CAT held at page 19 to 21 as follows: - "It is the audit report which triggered the charges against them. In that regard, the non-involvement o f the appellants and subsequent conviction based on that report was irregular because they could not adequately prepare for the hearing before the disciplinary committee... the right to be heard before adverse action or decision is taken against a party is so basic that a decision which is arrived at in violation o f it will be nullified even if the same decision would have been reached had the party been heard. This is so because the violation is considered to be a breach o f natural justice. See- Abbas Sherally & another 1/5 . Abdul S. H. M. FazaIboy, Civil 11 Application No. 33 o f2002 (unreported). Thus, the failure to accord the appellants an opportunity to be fully heard was a breach o f naturaljustice and a violation o f a fundamental right to be heard under Article 13 (6) (a) o f the Constitution o f the United Republic o f Tanzania, 1977 (the Constitution) which provides: - Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikiiizwa kwa ukamilifu..." [emphasis added] Likewise, and as correctly submitted by the appellant, it is trite law that parties' submissions supported with legal authorities, if any, are not evidence. Accordingly, the Mining Commission was wrong to treat the parties' written submissions as evidence and the holding of the CAT case of Luhumbo Investment (supra) is relevant on this ground of appeal. On page 9 of the said case, it was held that: - "At any standard, written submissions and its annexures do not form part o fpleadings and the same are not intended to submit new facts or evidence but only to elaborate on the facts and/or evidence already indicated in the pleadings - see for instance the case o f the Attorney General & Another v. Joseph Mwandu Kashindye, Civil Appeal No. 18 & 8 o f 2013 (unreported), "[emphasis added] The 12th ground of appeal is that the Mining Commission erred to rely on the "Flexicadastre Portal" of the Mining Commission in its judgment without 12 affording the parties an opportunity to be heard; being in total violation of the principles of natural justice. The appellant submitted that none of the parties were given access to the "Flexicadastre Portal" of the Mining Commission before the Mining Commission reached its considered judgment. According to the appellant, making a determination of the matter based on any document; or system, without involving both parties violated the principle of the right to be heard and consequently vitiated the whole decision. In support of the appellant's submissions, the cases of Benjamin Mungo vs Sisi Auction Mart & General Brokers & four Others, Land Appeal No. 01 of 2022; Wegesa Joseph M. Nyamaisa vs Chacha Muhogo, Civil Appeal No. 161 of 2016; and Kumbwandunmi Ndemfoo Ndossi vs Mtei Bus Service Limited, Civil Appeal No. 257 of 2018 (all unreported) were cited. Regarding this ground, the issue for determination is whether or not reference to the "Flexicadastre Portal" in the judgment was in fact, a new issue, and whether it violated the parties' right to be heard. I have perused the judgment of the Mining Commission and observed that in the course of composing the said judgment, the Arbiter made reference to the 13 "Flexicadastre Portal" (the Portal). The Arbiter further proceeded to use the Portal to conclude that the appellant's allegation was not true. Indeed, it is undisputed that the Portal was not part of the evidence tendered before the Mining Commission. On pages 7 to 8 of the judgment of the Mining Commission it is stated that: - "Fourth, the claim that the Respondent repossessed an area covering PL 2384/2003 and obtained PL 9622/2014 covering the same area. We have already dealt with an allegation concerning PL 2384/2003. However, we wish to briefly state that, according to the Mining Commission licencing registry (Flexicadastre Portal), PL 9622/2014 was issued over an area that was unrelated to PL 2384/2003. We, therefore, conclude that this allegation is untrue. "[emphasis added] Ordinarily, when a new issue is raised by the court or any competent organ in the course of composing the judgment, the same must be placed in the record. Additionally, both parties must be invited to give their comments or be heard regarding the new issue before the resultant decision or judgment is delivered. In this matter, the Mining Commission committed a serious error for failure to invite and hear the parties regarding the "Flexicadastre Portal" which was a new issue raised suo mottu by the Arbiter in the course of composing the judgment. In the CAT case of National Microfinance Bank PLC and Another vs Lello Laurent Sawe, Consolidated Civil Appeals Nos. 14 385 "A" & 339 of 2021 (unreported), dealing with a similar question, it was partly held as follows: - '7/7 the instant case, the learned trial judge raised a new issue suo motu in the course o f composing her judgment and determined it without affording the parties the right to be heard. On the authorities above cited, the learned trial judge’s judgment cannot be left to stand. It is a nullity."[emphasis added] Again, the CAT case of Kumbwandunmi Ndemfoo Ndossi (supra) cited by the appellant is equally relevant to this ground of appeal and it was held that: - "Basically, cases must be decided on the issues or grounds on record and if it is by the court to raise other new issues either found on the pleadings or arising from the evidence adduced by witnesses or arguments during the hearing of the appeal, those new issues should be placed on record and parties must be given opportunity to be heard by the court...this Court has always emphasized that the right to be heard is a fundamental principle o f naturaljustice which should be observed by all courts in the administration o fjustice... In the instant case, it is evident that parties were not accorded the right to be heard and address the court on the new issue on the applicability o f the principle o f vicarious liability which was raised by the learned High Court Judge when composing the judgment. Therefore, the learned High Court Judge arrived at its finding in contravention o f the right to be heard. Such omission 15 amounted to a fundamental procedural error which occasioned a miscarriage o fjustice to the parties. Consistent with the settled law, the resultant effect is that; such finding cannot be allowed to stand. It was a nullity. [ emphasis added] The authorities cited herein and the findings above, renders the consideration of other grounds of appeal unnecessary. In the circumstances, I allow the appeal. The judgment, proceedings and the decree of the Mining Commission are hereby quashed and set aside. Further, I direct the Mining dispute No. 04 of 2022 between the parties herein be heard afresh and expeditiously by another Arbiter according to the prevailing laws. Since the irregularities were largely prompted by the Mining Commission; I order each party to bear its own costs. Order accordingly. Right of appeal is explained. DATED at DODOMA this 19th day of July, 2024. 16 Judgment delivered in the presence of learned counsel for the respondent, Mr. Richard Mchwampaka; and in the absence of the appellant. 17