isaac sons co ltd vs north mara gold mine ltd 2022 tzhccomd 163 10 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT MWANZA COMMERCIAL CASE NO.03 OF 2020 ISSAC & SONS CO. LTD............................................. PLAINTIFF VERSUS NORTH MARA GOLD MINE LTD...................... ?.DEFENDANT Last Order: 09/06/2022 '<>, /> Judgement: 10/06/2022 \\ '' / JUDGMENT \\ \\ NANGELA, J.: v " ~ V Nik ' According to the pleadings filed i'n^his Court by the Plaintiff, this suit was filed on thez23rd December>2020. In it, the Plaintiff, a 11 ‘.A private limited liability . Company-duly incorporated under the Companies Act, Cap.21'2 R.E 2002, seeks for Orders/Judgment and Decree of thiskCourt against the Defendant (a company formerly known as Afrika' Mashariki v':\ Gold Mines Limited) as follows: 1. ' An’order for payment of US$ L-.\ | 1 ' //21,610,827.00 or equivalent in ' —-" Tanzanian Shillings being the Plaintiffs entitlement to revenue royalties up to 30th June 2017. 2. An Order compelling the Defendant to pay the Plaintiff the sum of royalties’ revenue of 1% as per the contract for the gold produced up for the years 2017, Page 1 of 91 2018, 2019, and years to come up to the closure of the mine. 3. Interest at the Court rates from the date of judgement and Decree to the date of final payment of the amount claimed. 4. General Damages for breach of contract. 5. Costs be provided for. % W w statement of defence disputing th^^aintiff^lainW and raised a Court on the 28th July 2021. n ifiko wAh noting that, when this suit was still pending, JnePlaintiff di^ilso approach this Court by way of an Apph^atio^ (Mis^^^^Aj^^o.14 of 2021) seeking for orders wl^^^/ou^^llow ^^^o enter mining properti^^^^ct o'^^s su^^^^court was pleased and granted her ac^isto tAminin^^^ which are the subject of controversy m rwLday of December 2021, following the completion ;s and the preliminary trial processes, this Court drew u]^^^^^^Betermination in the course of hearing of this suit. The agreed issues between the parties and which this Court recorded were as follows: 1. Whether the Defendant entered into agreements with the Plaintiff for the payment of royalties. Page 2 of91 2. Whether there was/is production of gold from the Plaintiffs former Claim Title Areas. 3. If the answer in the second issue is in the affirmative whether the Defendant is in breach of the terms and conditions of the three agreements by failing to pay tha accrued royalties. 1 4. In the even the answer to d|^hird issue is in the affirmative, whlflbr the Plaintiff sufere<^^^l^^pa general dama^|||^ '' 5. To w^^^^jefs ^^the p^^s entitlllr „ SubsequenWo ft aboA^^^^in^^p of issues the parties convened for ^^^ear^^f thison the 23 rd day of May 2022. On that^^^yl da^^ie pflllff enjoyed legal services of Dr. Rugei^^^a N^ala, ass^^^by Mr. Nyaronyo Kicheere and Mr. Ivocates. Mr. Faustine Malongo and Ms lyl^eamed advocates, appeared for the Defendant. In er case, the Plaintiff called a total of three witnesses various exhibits. Likewise the Defendant called three witnesses as well to establish the Defence case. At the opening of the Plaintiffs case, the first witness for the Plaintiff, one, Mr. Enock Isaac Mwita (74 years old), a Director and Shareholder of the Plaintiff Company, testified as Pw-1. In his testimony in-chief, Pw-1 told this Court that, initially the Plaintiff Page 3 of 91 was an original holder and beneficiary of the mining and surface rights granted under the Mining Act, 1979. He further told this Court that, the mining rights held by the Plaintiff were registered as Mining Right No.TR 13/91, No.TR 14/91 and No.TR 15/91 (collectively referred to herein after as the “former claim title areas”) and, that; currently these are situateik within the three “former claim title Admitted as Exh.P.l, Exh.P.2 and ]^^.P.3^^_ccor^fe to Pw-1, Exh.P.l, Exh.P.2 and Exh.P^^were pre^^^ b^ the Defendant’s management ai^^ega^eam of the Plaintiff’s legal representative '^^^^rso^^th any^fcl knowledge. ^^^^^this Airt tha^^mer Exh.P.l, Exh.P.2 and Exh.P.3 the Pld^l^ff gifted to t^^^fendant, exclusive rights to carry out “former claim title areas”, including [other pu^^e^^^illary to the conduct of mining operations, and tat, if the Afendant commences Mining operations on any part of claim title areas”, then the Plaintiff would be entitled to receive a quarterly payable 1% (one percent) royalty of all gold produced from the said “former claim title areas.” Pw-1 told this Court that, in consideration of the Plaintiff transferring to the Defendant her mining rights over the “former claim title areas ”, the Defendant agreed to pay the Plaintiff: Page 4 of 91 1. US$ 1,660 at the date of execution of the said contracts and US$ 2000 for each Agreement upon approval by the Commissioner for Minerals. 2. The Plaintiff will be entitled to the revenue royalties calculated at 1% (one per centum) of all gold produced from that part of th^ land which is payable q|||*terly and calculated as last d^^^ the quarter at gold price. jWith the Agreements (Exh.P.l to P.3) the PWntiff recgiyed US$ 10, 800 for the ft the Plaintiff has never greements. He told this Court that, p^^^W^sigm:^^f the agreements, the Plaintiff used to do gold r^to^^^fivities whatever means or technology ^^^^^o^^^id^^^'as indicated in clause 4 of the Agreements [the Defeii^it fully aware of the existing economic activities wihin theuwmer claim title areas.” is, Pw-1 stated that, as per clause 4, it was the Plaintiff who was solely responsible to compensate the artisanal miners, shaft sinkers, shamba holders and allotment farmers. According to Pw-1, the Plaintiff did all that to pave way for the Defendant to enjoy an uninterrupted access to the “former claim title areas” with legitimate expectation of getting the royalty payments timely. Page 5 of91 In his testimony, Pw-1 stated that, although the Defendant has produced a substantial amount of gold since she commenced mining operations over the “former claim title areas”, the Plaintiff has never been furnished with any information pertaining to production of gold of the “former claim title areas.” He told this Court that, on the 18th day of December 2020, the P^jtiffs Board of Directors passed a resolution to sue the Defppdant fc^^each of contract. He tendered in Court the Board admitted as Exh.P4. He claimed, therefore, that, t^^^dntif^^pntAd to the total Agreements as of 30 Jiay of June 201|L Furthermore, Pw-1 stated that, the Plaintiffis e: ed royalty revenues for the years: 20F^^»9 ar®|p20 andj|he years ahead, up to the time e mine. He stated that, so far the Plaintiff has did sign Exh.P4 and do agree with all that is written there in, since his lawyer did tell him what it was all about because he is not conversant in English language. He also admitted that, what is in Exhs.P-1 to P3 is all that the parties agreed to and the same form the basis of the claims in this suit. Pw-1 told this Court further that, when the Plaintiff signed Exh.Pl to P3, the same had Page 6 of 91 r already been prepared by the Defendant’s lawyers without involving the Plaintiff lawyers and so, the Defendant give them for signing after being given a translator who was the Defendant’s Security officer (guard) conversant in both English and Kiswahili. During cross-examination and re-examination Pw-1 told the Court further that, the Plaintiff used to do gold^^iing in the “former claim title areas” and was able to mahpiin and^^^ide for the families’ needs, but since the Plaintiff surr^^^^^er the Defendant, she has suffered and bec^f^ imp^gi|j^d%^eause she has never been paid. He state^^^th^^cur^ officer who interpreted for him when he^^ed was called ABIYA HUDSON WAP^^RA^^ a G^^nment Mining officer was also present. ft? ' The sec^^ wi^ss fc^^^^la^ff was one Eng. Peres Joshua Ntingif^^^^yr^^^) testftj^ig as Pw-2. For his part, Pw- 2 tol^^^^^^urt he^Wa professional ..mining engineer registe^&by tl|| Engin^^^R.egistration Board (ERB) with Reg. )egree i^^n^^ering Management, both having been obtained rpm the Adversity of Dar-es-Salaam, in 2010 and 2016 pFand, that, he is currently a doctoral student of the same University. it In his testimony, he told this Court that, on the 09 of August 2021, he was engaged by the Plaintiff to undertake a site visit for inspection and observation of the components and activities on the “former claim title areas,” and, thereafter, prepare relevant Page 7 of91 inspection report as well as opinion regarding utilization of the afore said lands and mining rights. Pw-2 stated further that, subsequent to the physical inspection, he prepared a report which he tendered in Court as Exh.P5. He also submitted an affidavit regarding his names; and, the same was admitted as Exh.P6. According to Pw-2, the Report reveals that, tl^^aid “former claim title areas” are being fully utilised bj^the De^^ant f°r mining operations and other activities ai^^^^^o operations. Pw-2 told this Court that, ^^^orr^^^^^^^ight No.TR 13/91 is being utilised for ^®Mtearin^^e dwp, reinforced concrete wall fence, water jfping ^^tem^®^^*wtion tower, residential houses occupieskby loial residents of Nyamongo, and part of Nyabirama in particu^^^e ^irst berm/bench of Nyabirama Pit. a M Pw-2 st^^^^irth^^^at^^^yrea covered by the former Mining^^^^o. t^^91 within the first berm/bench of Ny^fcama A and, t^^fere, the same has been excavated for former Mf^ng//^^ht No. TR 14/91, is being utilized for activities ^ciliary teAiining operations, including reinforced concrete wall fe^^^^^^Kring boreholes, haul road, community road and mine patrol road, residential houses occupied by locals of Nyamongo, and buffer zone. As regards, the former Mining Right No.TR 15/91, Pw-2 stated that, the same is also being utilised for activities ancillary to mining operations, including security (observation) tower, Page 8 of 91 reinforced concrete wall fence, waste rock dump, haul road, offices occupied by Capital Drilling, Run- of-Mine (ROM) Pad, and patrol road. Taken as a whole, Pw-2 told this Court that, the “former claim title areas f are being fully utilized by North Mara Gold Mine Ltd (the Defendant) for mining activities and other activities ancillary to mining operations for gold production and the Defendant benefits in claim title areas f images whic^^^^, sha||^. tqjpiim by one Leonard Vincent Bamuhuga^^^nd part of his inspection team, and th^^^gage^^to 2^^Exh.P5, explanations are given which suppo^^ each^f th(i||hi^gls. the images does not show the exact fcoordina^^th^^i, all the fact is that, the “former claim title ^^^asf are ^thin the area of the respective coordinates. ^^gg^wrther cross-examination by Mr Malongo, Pw-2 told this Court that, when he visited the sites he did not find the Defendant carrying out mining at the time but he did witness that, mining activities had already taken place on the area described as Mining Right No.TR 13/91, though he could not tell when exactly was it done or how much gold was extracted from the said area. Page 9 of91 Pw-2 also told this Court that, the Mining Right No. TR 13/91 is within Nyabirama Pit which is under the Defendant’s ownership and, that; the area is mined for gold production. He told this Court that, in his report, Exh.P5, he opined undoubtedly that, the Defendant has been benefitting in using the “former claim title areas,” in its gold production activities. Upon being asked by the Court, Pw-2 |gj.ted th^^e is the author of Exh.P5 having been engaged by the^^^^^to and, that, during physical verification title areas f he was among the team v^^^^vo^^ h^elf, the land surveyor engaged by the P^^iff from the Defendant’s side. He stateAat, alll|ward^|e prepared Exh.P5 and used the satellite imaepFprepared by^^Lpomrd Vincent. He also told this Court th||, th^ind ^Jwities he observed at the Mining Right^^^^. l.^^^vasmechanised mining activity and, th^^^^.shou'^fave ^Wuexcavators and heavy loading or haulin^^cksj^le to car^^' to 200tons of load. ^^^^^^I^Court that, crushing of the heavy rocks wuipments.«e stated, therefore, that, that is the kind of mining had been carried out at the area of the Mining Right No.TR 13/91. Pw-2 told this Court that, in mining activities, the purpose is to get hold of mineralised boulders (rocks). Some rocks may have gold mineral but others are not but he was not able to tell whether the Defendant got gold minerals at the Mining Right No.TR 13/91 or not. Page 10 of 91 Pw-2 told this Court as well that, in the Mining Right No.TR 14/91 and the Mining Right No.TR 15/91, the same are not mined but used for other activities ancillary to mining and gold production, such as, wall-fencing, haul roads, rock wastes dumping, RoM-pad (where mineralised rocks are kept), security towers and piping structures and water boreholes, office^Mbr drilling contractors as well as patrol roads. Pw-2 stated &rther d^^^ cross- examination by Mr Malongo that, when he already the mineralised rocks were alre^^^iark^^^^^^^w to extract gold from them as they w^^^^se ^^e dpsher and the processing plant. According to Pv^^^sua^^^ton^^ith minerals are kept closer to the crusher ^pthe proces^^. pja^ and, that, had they been waste rocl^^iey^ould b^mkept near the plant. As for him, there^^^o o^^stock^Win that place and other rocks were froAihe crufmng area, meaning that, they were wastel^^s. stated ^^fer that, in his report, he has state that pn open benches and berms are created and such were ^^ade in thArea for the stability of the pit walls to access dipper or^^^^^^ although he was not in a position to tell if the Defendant got gold out of it or not but the fact was that the Mining RightNo.TR 13/91 was mined. During re-examination, Pw-2 stated that, the Mining Right No.TR 14/91 acted as a buffer zone, an area where flying rocks would fall during blasting of rocks in the course of mining Page 11 of 91 activities. He stated that, the Mining Right No.TR 14/91 is within the Defendant’s Special Mining Licence. He also confirmed that, the satellite pictures were being taken from the “former claim title areas, ” by Mr Leonard Bamuhiga who was part of his team, and, further, that, the Mining Right No.TR 14/91 and the Mining Right No.TR 15/91 have not been mined but harbours d||py activities related or supportive of the Defendant’s minin^peratid^|and gold production. mineralised ores near®^ crusher anulthe nl^mt. He also told this open pit mining, the wn waits with creation of berms and benches^^^te, walliinust bcFfeft stable to avoid collapsing and provi< [will be c<^^rb^^d. The Ard (last) witness for the Plaintiffs case was Mr. Jo^^^^^^iiko Mwita, (69yrs old) testifying as Pw-3. In his testimony in chief, Pw-3 told this Court that, professionally he is a geologist living and working for gain in Nyamongo, Tarime District, Mara Region as one of the Directors and shareholders of the Plaintiff Company. He told this Court that, the Defendant is a successor in title of Afrika Mashariki Gold Mines Limited Page 12 of 91 (AMGM) while the Plaintiff was the original beneficial owner of J the “former claim title areas.” He told this Court that, on 3 of September 1999, the Plaintiff executed three Contracts (Exh.Pl to P3) with the Defendant and, that, the agreements were prepared by the Defendant’s management and lawyers in the absence of the Plaintiffs lawyers or Plaintiffs duly authorized representative with legal knowledge. In his further testimony, Pw-3 stated th^^^^te,Ex^^^^ P.3, the Defendant was granted exclusnUhjghts^^^^^^termer Claim Title Areas,” to carry ou^tem^ig ^b^ratfcs and other purposes ancillary to the coj^ct (^^liri^^^^^t^ns such as disposing, stacking ord^BPing^^. min^^ waste products and construction of any jjJecessary fac^^s^ n^essary for mining activities. M Ji, % On the 1^^yiano^^)w-3^pB this Court that, as per the agreem^^^^yied, ^^ie I^^Sant was to commence mining opera^£. theWlaintiff^^' be entitled to payment of revenue f>er centum) of all gold produced from the ^former areas,” payable on a quarterly basis and ^Iculated apjat the last day of the quarter at the London spot gold P^ilillr Essentially, Pw-3 reiterated what Pw-1 earlier told this Court regarding what the Plaintiff was to be paid in consideration of the Plaintiffs transfer and surrender of her mining rights over the respective “former claim title areas,” the Defendant, i.e., the US$ 1660 (upon execution of the transfer Agreements) and US$ 2000 Page 13 of 91 utilized for gold production without the Plaintiff being paid anything. He stated that, the Mining Right No.TR 13/91, the Mining Right No.TR 14/91 and the Mining Right No.TR 15/91, were together incorporated in the Defendant’s Special Mining Licence (SML) and, consequently, the Defendant is using them for mining operations now. At that juncture, the Plainti|||s case came to a closure paving way for the Defendants cas^° open^^ In establishing her case, the Defenda^^^^ th^^^^ witnesses, who testified as Dw-1 (Ale^^biai^^^^^^^>6yrs old), Dw-2 (Mr Joseph Calist Ra^^^yr^^l) Dw-3 (Mr. George Kondela, 53yrs old).^^is w^^ss^^^^^^^ndered and received in Court as his^^^noi^^ chi^^w-1 testified that, he works as a Superint^^St-''SurveylJ^fdh^Defendant and his profession is aHe told this Court that, the 'forrr^^^m A^ireas”^^,TS once mining rights held by the Plaintj®llh>, |to P3) v||^re1||^the Plaintiff surrendered and granted to the ^^efendant As and exclusive rights to dispose, stack or dump any m^^^^^^vaste products and construct any necessary facility to achieve, service or utilise the land for purpose of and associated with disposal, stacking or dumping of any mineral or waste products on the land comprising the “former claim title areas. ” Dw-1 testified further that, the Defendant has not yet started “gold mining operations” on any of the 'former claim title areas” Page 21 of 91 which erstwhile belonged to the Plaintiff. He testified further that, from the year ended 2013 to-date the Defendant has never produced gold from the Plaintiff’s “former claim title areas.” According to Dw-1, the Defendant has been producing gold from various other areas and the claim areas which belongs to other persons other than the Plaintiff. Dw-1 testified further that, in the course^ “wast^^ipping” in the area which is part of the Nyabirama^^^^De^^^^ removed (974.010m3) of waste soil from^^roxi^^^^^^^6m2 at the top of the former Mining R^f^^T^^/9^^ construct a berm but that, in so doing nojg||l w^^p^^^^^^^ed from the said approximately 342.556m o^|he iax^^Mining Right No.TR He told thi^CoAthat,-|^^ta awaof 342.556m2 form part of the fist ber^^^se ^^^funi^^^is to support the surface soil so as it f^^coll^^^/falling into the mining pit. He stated,^feeforAthat, th^^fcntiff is not entitled to the claims she uld be dismissed ( Dufl^ (^^-examination, Dw-1 told this Court that, it is Indeed true^at, some activities such as stacking or waste dumping, st^^^^^^Br ores and other laying infrastructure on the “former claim title areas” is done by the Defendant, and, in particular on the Mining Rights No.TR 13/91 and No.TR 15/91. He also admitted that, the Plaintiff was paid US$ 1660 and USS 2000 but that, he was unaware of .who should have paid compensation to any third Page 22 of 91 party as per clause 4 of Exh.Pl to P3 or how much was paid as compensation to such persons if any. Dw-1 stated that, the Plaintiff was paid USS 3660 and was further to be paid the 1% royalty only if the Defendant was carrying out mining operations in those “former claim title areas.” He admitted that the term “mining operations” is not^^pned in the Exh.Pl-P3, but reiterated his earlier statem^, that, ormer claim title areas” are not being utilised. a^^^^ afterwards, that, the Mining Rights No^^l3/^^^^^^^^.TR 15/91 are being utilised as per the ^^^^nts^^h.l^^o P3). Dw-1 was adamant tha^^nsp^^g'^^^^^A storage or waste dumping site is^^^art ^^mim^^perations” as such a term was not defined |^mc agreemei^^^^d^itted, however, that, the term may inc^de ^idlin^^^^er^^d ores to the crusher or processor. HeWu|||p th^^he Dejpdant did mine gold in other people’s^Sl^nd d^^ump'^^^mineralised ores on the Mining |stripping/^^.tn^^zwzw^' Right No. TR13/91 but that, such an act of gripping dA not amount to “commencement or carrying out m^^^y^^tions”. He admitted, however, that, the Defendant did construct a berm on TRI 3/91. On being further cross-examined, Dw-1 told the Court that, the Plaintiff had two types of rights, surface rights and mining rights and Clauses 1.1 of the Agreements (Exh.Pl to P.3) grant such rights to the Defendant. He admitted that, mining operations do Page 23 of 91 include infrastructure, hauling roads, blasting, drilling, loading and hauling, to mention but a few. He did admit, however, that, constructing the berm is part of the mining pit. He admitted also that, one cannot be licensed to operate a mine if there are not areas for waste management. Moreover, Dw-1 admitted that, there must as be a buffer zone to carry out mining operations, and, that^jn the i^^ndanf s written statement of defence; the Defendant dm^^^tote removed about 974.010m of waste wj frow a®r<^^ately 1% royalty if the Def||Sant producec^^ld.fr^n the “former claim title areas”. He^.ter^d tha^^^^he^^fendant did in 2015 on the Mining stripping of the land by remov^^^l^^ top and excavated an area of appro^Etely ^2.553m^^oving 974.010m3 of soil there form. ^jfendant’^Company. He testified that, the 03rd day of March l^^^^^^aintiff executed three agreements with the Defendant (Exh.Pl to P3) and, that, in consideration of payment of US$ 10,800, the Plaintiff surrendered and granted to the Defendant sole and exclusive rights to dispose, stack or dump any mineral or waste products and construct any necessary facility facilities to achieve, service or utilise the land for purpose of and associated with Page 24 of 91 disposal, stacking or dumping of any mineral or waste products on the land comprising the “former claim title areas”. Dw-2 stated that, it was further agreed that, in the event the Defendant commences “mining operations” on the “former claim title areas” the Plaintiff would be entitled to royalty equal to the value of 1% of all gold produced from that part °^be area and, that, such payment was to be made at the end og^each of the year calculated as at the last day of the quartei^^^^^nd^^^^ price in cash. He stated, however, that, th^^^^da^^ ndjpiable to pay revenue/royalty to the Plaint^^feca^^tb^^^^^^d has been produced or mined fromJJ^e l^e areas”. He also testified that, for the yfSending JunAoi3 June 2014, June 2015, June 2016 and June M7, th^^ftnda^niever declared to TEITI that it extracte'^^^fro^we Plain^p’s formed claim areas. year ending June 2013, the Defen^^ nejj| produce|plt44,833 ounces of gold worth TZS ^^^^^3^^^^^^^1ent of USS 372,995,795from “the former ^claim consequently, the Plaintiff is not entitled to 3,729,07.95. Likewise, he denied that in the year ended June 2^^^^^^^endant produced 267,070 ounces of gold worth TZS 561,120,160,000/- equivalent of USS 346, 584,410 from the ‘former claim title areas” and, consequently, the Plaintiff is not entitled to USS 3,465,844 as claimed. Besides, Dw-2 denied that, in the year ended June 2015, the Defendant paid the Ministry of Energy and Minerals TZS Page 25 of 91 26,095,414,093.00 being royalty for gold produced from the “former claim title areas"' and that the Plaintiff is not entitled to be paid US$ 4,578,142.8 or any part of as 1% revenue royalty. Dw-2 testified further that, the Defendant neither produced gold from “the former claim title areas" nor paid the Ministry of Energy and Minerals TZS 31,431, 849,540.00 bei^g^ royalty for gold produced from “the former claim title areas". He cd||equently stated that, the Plaintiff is not entitled to be as 1% revenue royalty, for the year ended^^h of Dw-2 testified, as well th^^^,ithe^^id Defendant l^Frevenue royalty as per Exh.Pl to P3^^^hat^^e yewHe told this Court that, the Defen^^^S^’lain^^eve^^^d that the Defendant will pay to the P^^ff rcAlty bas^^ft the royalty paid to the Ministry of i that, the Defendant has never breached 'ff\Q wttnAs she has not produced or mined gold from “the title areas", and, that, there is no royalty that is due to the Plaintiff from the Defendant. Besides, Dw-2 stated that, during the obtaining material time the Defendant produced gold from other areas belonging to other persons and not from “the former claim title areas", and, for that reason, the Plaintiff is not entitled to US$ 21,610,827.00 or any part of it as revenue royalties for the years Page 26 of 91 ending June 2013, June 2014, June 2015, June 2016 and/or June 2017. He testified further that, since the Defendant has not produced or mined gold from the “former claim title areas”, there is no basis for calculating revenues for the years 2018, 2019, 2020, 2021 and the years to follow to the closure of the Defendant’s According to Dw-2, the Defendant has^ever rit|j^ed any request or demand from the Plaintiff for inforr^^^^part^^^^ status of production of gold from the “fd^^ cla^^i^^^^^ and no gold was ever produced the^^^^e, P^ptiff has not suffered any damages resulti^^^bm ^fec^^fc^^gi^ments. He also testified that, the P^^^f di(^^ issu^^y demand letter to the Defendant before filin|^he suit, he^^, npt Entitled to any costs, . , . . fl Jlr interests or paymppt o^enera^arl^es^ During ^^^^xa]^^^ion,^^^-2 stated that, the Plaintiff surreni^^^^surf^^pghts^^^^$ 1660 and US$ 2000 for each of the ‘^^rmer ^faim tit^^^as ”, and further, if mining was to be u^^^^^^^^^ssed from the “former claim title areas” a ^further ^^id^^on of 1% royalty would be payable to the ^aintiff, ashler Clause 3.1 of the Exh.Pl to P3. He stated that, the s to “gold produced”. He admitted, however, that “mining operations” includes mining of gold, transporting of gold deposits ores (rocks), storing of such ores, crushing and processing and from there refined gold is obtained. On being further cross-examined, Dw-2 admitted that, all activities sated in paragraph 7 of his witness statement does Page 27 of 91 constitute activities taking place on the “former claim title areas” and, that, these are part of “mining operations”. Dw-2 admitted, however, that, paragraph 7 of the Defendant’s written statement of defence and paragraph 12 of his witness were at variance but admitted that, the “former claim title areas” do indeed facilitate the gold mining operations. As regards the signing of Exh.P.l to the P^^s’ Dw2 told this Court that, the Plaintiff signed it th^^^^ understood what they were signing and^^jp 10,800.00. He maintained that, th^^^^ng ndjj^Iepend on a translator who translated the A|feemi|fe. Dw-2 did admit, however, that,^^^gefe'^^it do|^pay the government royalty equal to 7 % (Ofbeing royalt^^^J °/Aeing clearing fee). Dw-2 admtoed^iat, a^M^ carry out calculations regarding hoW^^^ is^^^to thj^vemment as 1% and what it amouni^^p^^he w^^ot reifij^OT able to confirm the correctness of the^^TI pAorts reh^^fe by the Plaintiff. He admitted further entity, but declined that the Defendant jsends in^^ia^^regarding gold production to TEITI. However, bpon beinglbiown the extracts of TEITI Reports (Exh.P7), Dw-2 the Defendant’s name appears to be there including what it produced by end of June 30th 2013, 2014, 2015 to 2018 but does not know where the government got the data it published. Dw-2 admitted further that, he did not tender in Court any evidence regarding production data by the Defendant so as to show Page 28 of 91 how much was produced in those years though the Defendant had referred such in the WSD. During re-examination, Dw-2 told this Court that, the 1% royalty arises from the mining of gold ores in the claim areas by first doing excavation, then drilling and blasting of rocks which are stock piled in a designated area, crushed and prd^ssed to get refined gold having been mixed with otW chem'^^. He maintained that, as for the Exh.Pl to P3, the p^^^^ comes from the final product and before^^jiing ^h^^^^^intiff cannot be paid. He also reiterated that^^z Pl^^ff^^^^^^r all claim titles, a total of USS 1O,&D£LOO lkhe yei||L999. He testified that, nowhere was it showi that the Wire for payment of compensating ttnjjj pl^es of the agreement does not recognise dHhnce or third party claims. rcmamed adamant that, there is nowhere in the where hown that it was the Defendant who ^^^^^^and translated it into Kiswahili version, fand that^^di^^t bring to the Court the Kiswahili version of it. ||e maintaiAl that, the Plaintiff has never asked to be allowed to ^former claim title areas” otherwise the Defendant would have allowed her to do so. However, when he was asked by this Court regarding whether the Plaintiff has ever brought an application seeking for an order of the Court to be allowed to access the areas, Dw-2 declined there being such an application in Court. Page 29 of 91 He also affirmed that, he did not tender Defendant’s production records in Court as he did not refer to them in the witness statement. He admitted, however, that, the Defendant has produced gold from Gokona, Nyabirama and Nyabigana pits and that, the three “former claim title areas” falls within the Nyabirama area though the Defendant has never mined from theAk gold from the “former claim t^^are^^f^^^^^^^^ the rest, he admitted that, on the T$ff^/91 the Defendant did strip-mine the land a^fdid consti^^^b^m and, that, about 342.556m2 of Ri^^^.T^^13/91 forms part of its berms. He, ne^^^ess^^ied so doing any gold was ever found inJ^teTR^hpl yfareas” from other claim areas belonging to other Aersons othAthan the Plaintiff. However, his attempt to tender in year 2013-2016 was unsuccessful, since the documents were held to be inadmissible and unreliable in evidence. During cross-examination, Dw-3 admitted that, part of the activities motioned in Clause 1.1 of the Exh.Pl-to Exh.P3 are activities related to mining operations and do take place in the Page 30 of 91 “former claim title areas”. He stated that, what triggers payment of 1% royalty as per Clause 3.1 of the Exh.P.l-P3 is when the “former claim title areas” are mined with ores that are processed and gold is produced. He told this Court that, there is one ROM-pad at TR 15/91 and that all mined ores and transported by haulage trucks and must pass though that ROM-pad before they are sent^the crusher, although others may be sent to the crusher directly. separating gold from the roc^^ do^^Ie'^^^^^rfed that, the security wall is erected oa||je claim title areas” and the Mining Right No.ffl.14 /91\s p^^Tbufler zone and without there being a buffer Z(W? one<^^^W>e^^^ved operate the mine. from the “former claim title areas” and ^such are^^pv^^ver been mined gold. That marked the end of the ^efendant’^ase and, the parties prayed to file closing submissions filed them, I will take them into account as well, along with the testimonies and documentary evidence tendered in this Court. Before I address the issues raised in this suit, let me reiterate the legal principle that has now become a common legal adage which is that, he who alleges must prove. The principle is firmly Page 31 of 91 established under our law of evidence. See The Registered Trustees of Joy in the Harvest vs. Hamza K. Kasungura, Civil Appeal No. 149 of 2017 and the case of Manager, NBC Tarime vs. Enock M. Chacha [1993] TLR 228. In a civil suit as this one at hand, the principle is therefore that, the Plaintiff shoulders the legal duty of provingl^r case to the required standards set by the law. That legal^irdcn i^^ out by sections 110 to 112 of the Evidence Act, C standard set for a civil suit like this oi^^ tha^^^^^^^^ the balance of probability. See the c^^^^^ila^^vs.’^^DB (1996) Ltd [2002] 1 EA 288 (CAT) Wathigo Chacha, Civ. Appeal Np^l9 relevant to the point. as well tritei^, in balance of probability rule, that, if theepde|||^ is s^^^^ tl^wurt or tribunal can say “we think it is7^^^>ro^^ thanjif' then, the case succeeds, but if the pr^^^^es arAimal, mirtJase fails. o such iWtes tiggpcd upon by the parties and find out whether the cen able to discharge his legal and evidential burden In this suit, five issues were agreed by the parties and recorded by this Court. To start with, the first agreed issue by the parties was: Page 32 of 91 ‘Whether the Defendant entered into agreements with the Plaintiff for the payment of royalties.’ According to the available evidence on record, on the 03rd day of September 1999, the parties herein concluded three separate agreements (but similar in effect and applicability^in respect of Mining Rights No.TR.13/91, No.TR.14/91 and No.^^/91. The admllibd ini 3, Dw-1, DW-2 and Dw-3, d(FSu|port a v|pv that, such agreements were concluded by th^^^fcs. Uri^^Exh^^ to P3, the Plaintiff ceded “certain of h^rights’^^kthe jMlendant as regards the “former clairrj^&e on cegfain considerations for such surrender^^ghts. .^^partAlar rel^tjqfg to the issue at hand, however, are ^Agreen^^ J^^.Pl to P3) which I will consider first. Clause 1, ^.1 and l.^^ppl^to surrender of certain rights over the “former title d^as” Clauses 1,1.1 and 1.2 state as follows: “1. CLAIM AREAS At the date of signing this Agreement AMGM shall pay the Applicant US$ 1,660 (Payable in Tanzanian Shillings at the Page 33 of 91 exchange rate adjusted at the date of signing this Agreement) receipt of which sum is hereby acknowledged by the Applicant, and in consideration of that payment the Applicant: 1.1 Grants to AMGM the sole and exclusive right to dispose, stack or products and necessary facilities^Jto ac services or utilize purposes of.Jmihassoci any on n^encing ning this pns that, this and the grant of right in Clause 1.1 above, for the purposes of section 101 of the Mining Act.” According to Exh.Pl to P3, the term “Application Area” referred to the “former claim title areas” marked “A” in a map attached to each of those Exhibits and which depicts the areas surrendered to the Defendant. The Plaintiff was recognised as the “Applicant” of those mining rights which she later surrendered to Page 34 of 91 the Defendant upon payment of agreed consideration, i.e., US$1,660. Clause 1.1 of Exh.Pl to P3 enlists various activities which the Defendant was permitted, from the date of signing the Exh.Pl to P3, to solely and exclusively undertake on the “Application Area”. Under Clause 2, a further pay amounting to US$ 2^) was to be made for each agreement for the Plaintiffs sui^pder of holder rights to the Commissioner and their attendant in^^^^ of the Defendant. all gold produ^^iro^any ^R^^th^Tlaintiff s “former claim title areas”. on the analysis of the above cited Clause^^ is jj^amount^^iote that, Exh.Pl, P2 and P3 were in ^^1^^ I^^^^^^^^orted, on page 5 of each of them, that, a '■■^.iswahi^^^r^^oi them was attached. A certification by one ''l^IHA EI^IANEEL of P. O. Box 422 Tarirne, purporting to ce^^^^^me said Kiswahili version of the agreement as being ‘a true and accurate translation of the Exh.Pl, P2 and P3’ and, that, the said ABIHA read it over to the Plaintiff “who appears to understand and agree with its terms”, is shown. However, I think there is a need to tarry a bit on this point and make some few observations before I venture any further. In Page 35 of 91 my view, there are at least four (4) things which need to be observed and noted. One, the purported Kiswahili version is nowhere attached on the Exh.P.l, P2 or P3. Moreover, the same were, as well, not produced by the Defendant nor attached in the Written Statement of Defence. Two, to the extent that the Exh.P.l, P.2 andz|l|3 had to be read over to the “Applicant” (Plaintiff) by a party^^x.o says the Plaintiff “appeared to understand it”, it lea^^^^^o d^^^^ terms of, not only the bargaining ^jjbwer ^^^^^^^tntiff (“Applicant”) but also her compre^^S^^ab^^. to^^preciate the terms of the agreements whic^^e wa^^d^^^^^^d their legal effects- Three, accordiiwto the -yonf^^^df testimony of Pw-1, the Agreemen^^ver^^repaj^^^^th^^efendant without any involvement oj^^^pain^^^^^^^rs if any or any other person with a^^^^^^d wh^^uld have ably comprehended the meaning and ef^^)f I».P.l, P.2^Jp.3, from a legal view point. ^^^fce palpable when one takes a look at page J5 of eac^^)f Agreements and the fact that, during cross- ^aminatioi^Dw-2 admitted that, the Post Office Box Number , used by the said ABIHA ■, the person who purported to have “read over the Kiswahili version", to the Plaintiff, is of the same Post Office Box Number of the Defendant, a fact from which a readily drawn inference will tell that s/he was/is an employee of the Defendant. Page 36 of 91 Indeed, Pw-1 testified that, the person who read to him the alleged Kiswahili version was one of the Defendant's Security Officers. Moreover, although Dw-1, Dw-2 and Dw-3 admit that, there were two versions of Exh.P.l, P.2 and P.3, and that the Kiswahili version was read over to the Plaintiff, there was no proof that the said “Defendant's Security Officer” wa^pmpetent in English and Swahili language to warrant this ^^t belie^^hat the, Plaintiff understood what was being translated was such. The Defendant did not even trod||||||o biWf'' that person in Court to testify on that ilk bargaining power, the purported terms of Exh.P.^te.2 an|tp.3 hav^^be read with a lot of caution and any the 'Lerms thereof, has to be resolved in favour of rthe Plaint^^vh^^not the one who drafted the said agreements. Indeewthat is important because, most mineral extraction bu^^^^^wss many parts of the developing world, constitute an 'area rife with the risk of asymmetrical bargaining power and fraught with unscrupulous dealings, where one misstep may invite what amounts to indefinite squatting on valuable mineral rights.’ Moreover, having been executed, they have been shielded with confidentiality clauses like Clause 5 of Exh.P.l, P.2 and P.3. Page 37 of 91 That secrecy has been and continues to be a source of injustice that flows from the extractive industry necessitating a new era of transparency in that industry. Indeed, that kind of secrecy invigorates the kind of sentiments of great antiquity once echoed in famous case of Scott vs. Scott [1913] A.C. 417; at page 477 by Lord Shaw oitounfermline, can to IIBicial .idW there 9? As 6ve, considering the manner in which^Bause darkness anwfinancial doldrums, with a yawning gap of knowledge earned from the former claim title areas for the past 23 or so years now. In such a situation, and, as correctly submitted by the learned counsels for the Plaintiff, the applicability of the contra preferentum rule cannot be avoided. Page 38 of 91 That rule is, indeed, entrenched in our jurisprudence to the effect that, an ambiguous term in a contract is to be construed harmoniously by reading the contract in its entirety but, where there is doubt about the meaning of the contract, the words will be construed against the person who put them forward. In fact, in a case whose facts are somewhat similar to facts in this case at hand, the case under the constituted Power of Attorney c rth Mara Gold Mine Ltd, Comgi (unreported), this Court appro sfch a rule. In that case, Hon. Fikirini, had the following to say: is, iguous or f§ion to the o did not take part iting or drafting the i omissions are to be igainst that party in this case, is the Mr, Kayinga's submission on contra preferentum” principle cannot be further well illustrated, as it is self-explanatory, and which I subscribe to." Page 39 of 91 Let me now revert to the Exh.P.l, P.2 and P.3 in light of what I have discussed herein and with a view to further respond to the first issue agreed upon by the parties herein. As I pointed out, Clause 1 and its sub-clauses LI and 1.2, as well as Clause 2 of those Exhibits surrendered to the Defendant the surface rights in “former claim title areas.” For all three agreements, the cc^^eration for the ceding of rights to the Defendant was a meagre USS l^^OO. As submitted by the learned counsels for^^h^mtiff^^i^^ it does not make sense that one will 1||jee t<^^^^wf^tlrree lucrative pieces of land with ^^^^al ^^d faring rocks underneath for a meagre US$^^800.^^re^^^^^e^Clause 4 of the Exh.P.l, P.2 and P.3jthe PllJhtaff wlthalso shouldered with a duty to compensate ^yhoever else^^^t "have been carrying artisanal mining^ induing shamba holders and ||F -3 allotment fam^^^iom^^Dw-2j dw acknowledged, used to carry ou^^^fecono^^activ^^^for livelihood. l|kis the keyfburces of the present controversy between the parties. Pw-1, ever since the parties signed the agreements in 1999 to date, the Plaintiff has never enjoyed what was anticipated from that signing, and this fact raises more questions than answers regarding whether the Plaintiff did at all understand the terms of the agreements. Page 40 of 91 In my view, Clause 3 of the Agreements was not divorced from what the preceding Clauses 1 and 2 provided, and to say the least, as I shall expound on it later, it was an ambiguous Clause. I hold that it was not divorced from what the preceding Clauses 1 and 2 provided because, in its opening sentence, it does link itself to the rights granted in Clause 1 (and its sub-clauses) of t^^Vgreements ^.ROYALTY JBL W In °“ie rights||granted to. iis of cation AMGM. dicant agrees that commences mining any part of the ApjOllion then: ^^1. The Applicant will be entitled to a royalty equal to the value of 1% of all gold produced from any part of the area covered by the application. 3.2 The Payment of royalty under Clause 3:1 to the Applicant will be made at the end of each calendar quarter calculated as at Page 41 of 91 the last day of the quarter at the London spot gold price in cash in Tanzanian shillings (such amount to be calculated at the exchange rate between Tanzanian shilling and US Dollars as at the date of payment.)” ision, Ohi part tement of the Plaintiff. In legal phrasing, n ^permitted by the owners 'al Dictionary, 3rd Edn, 'royalties' signifies, in that part of the which is variable, and jw payment to a patentee on every W article made according to the patent. Rights or privileges for which remuneration is payable in the form of a royalty." Page 42 of 91 In the Indian case of Commissioner of Income Tax-Ii vs. M/S Punjab State Forest... on 4 October, 2013 ITA No. 442 of 2009, the Punjab High Court had the following to say: “that royalty is neither a tax nor a fee but is more akin to rent. ... In Wharton's Law Lexicon, Fourteenth Edition, royalty is stated to be payment to the own of minerals for the right o: or Judicial Dictio Phrases, Thir stated hds inerals Whiteley's been stated to be a payment made to the landowner by the lessee of a mine in return for the privilege of working it. It is, therefore, clear that royalty is the price paid for Page 43 of 91 the privilege of exercising the right to explore the minerals. It may be the whole or a part of the consideration of a mining lease.” From the above understanding, it becomes abundantly clear to me that, the rationale for payment of royalty to^nineral rights holders like the Plaintiff by the mineral producer is^b|it, such is made payable as a consideration for the extri f theWduab resources which the rights holders could h; some reasons have ceded their ri^s to tl^^ine^^roducer for such payment in the form royalty^ Clause is not only de^id of beset with ambiguity. In essence, th^^fcigu^kthat flowArom such a provision is that, " /iS" nowhere does it st^^iow^t^^^^regarding gold produced from such u^ier cggm title^ea^\ which data would have formed the basis foj^hlc ^tain^^pd^^i whom or where. In vi^ of^at, much as the offer could have been shown in ij|||yes ofgjpB Plaintiff as being a ‘lucrative* one, it seemed to have been sljlr-coated because, and as I stated, the Plaintiff was not told how such production data was to be gathered, when and by who, and even how and when was information regarding commencement of mining operations in those former claim areas and amount produced there-from, was to be shared to the Plaintiff. Page 44 of 91 Above all, the Agreements and specifically Clause 3 is/was silent regarding how the Plaintiff will access such information in each production quarter. Indeed, as it may be noted from the record of this suit, accessing the areas was itself an issue and the Plaintiff had to seek, by way of an application, for the inspection orders of this Court, which were on the 28 day of Julj^^)21, issued requiring the Defendant to allow the Plaintiff^pcess to^^/or/wer claim title areas. As this Court observed in the case^^fr. Mwita (supra), agreements of th^^^^of ^^.P.^P.2 and P.3 agreements, was enjoyin^^rtai^^nefii^hg the initial holder of rights, such as carryiij^out mining Atoies^r daily subsistence, but who decide^p c^^ such^^^^nc^ra cease her operations in favour of th^W,^ w^^^have sure^ provided clear modali^^^^^ing dt^the iBS&ant factors I earlier pointed out would^tachie^d for th^^^e and the realization or enjoyment of ments f As We sralkof affairs stands as of now, Exh.P.l, P.2 and P.3 Wre silent, which silence means that, all powers were/are left upon it to decide at will when and whether she should inform the Plaintiff or just bereft of such valuable trigger from her knowledge as it seems to be since 1999 to date. But all other things aside, it is clear from the above Clause 3.1, therefore, that, the parties has an agreement that the Plaintiff would be paid royalties. Page 45 of 91 It follows, consequently, that, the first issue is proved in the affirmative that, the parties did agree that the Plaintiff would be paid 1% royalty by the Defendant. With that in mind, a way is paved for the consideration our next issue. It is important to note, however, that, the agreed payment of 1% royalty was conditional, and, to address its conditionality, I will proceed to th^^xt issue. The next or second issue was: ‘Whether there was/is production gold from the Plaintiffs form^^laim Title Areas.’ As I stated herein abov^^id^^^fc^^^^d^this second issue, it is imperative to take^^^hat, "^^jayrn^^related to 1% royalties had its cond^^^ftty an^^iat l^^been the source of acrimony between th^arties^^^sen^^keir bone of contention has been, und^^hat ijhiditions ^^ircumstances were such 1 % royalty to tyenaid?^bk 'somewtent. ^indicated how clumsily Clause 3 and :ed. That fact, notwithstanding, does not pmnder^^^f^yiaking some further considerations regarding that ||pause. An^if is to address that particular question regarding Ak>and uiffer what conditions or circumstances were such 1% a further closer examination of the agreement itself as a whole, to obtain from it the overall intent of the parties. As a matter of general principle, to be able to determine the common intention of the parties in a contract or, if no such intention Page 46 of 91 can be determined, the meaning that reasonable parties of the same class as the parties would give to it within the same circumstances, one has to construe the contract as a whole, taking into account, in particular, the nature and purpose of it, the conduct of the parties and the meaning commonly given to its terms and expressions in the trade concerned. Put differently, that is to say, in order to garner the true intention of the parties, one^puld d^^^ered it by construing the agreement as a whole in the o^^^^ attendant circumstances. That, in essence, is a role^^^e not of the witnesses or the jury, it bein^^nat^^f a matter of fact. See, for instan^^^e A^^n cases °f KPMG Chartered Account^^ (SA) ys. Amrefiif Ltd and Another 30 and Jo'ii|^Muriicipal Pension Fund vs. Endumeni Muni'^£ity 2^2 (4) (SCA) para 18; and the English case Bation Scheme Ltd vs. West Bromwich pBuilding^p^||^ Others [1998] 1 WLR 896 atp. 912. In n A1 Joint Municipal Pension Fund vs. Endumeni (supra), for instance, Wallis JA had the following to say, at para 18: “Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory Page 47 of 91 instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the documents consideration must be given to th provision apg|| purpose Speh i irecteOnd the iose Jetion. eaning is ility must be e light of all these process is objective, tive. A sensible Ipaeaning is to be preferred to one that leads to insensible or un- business like results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business like for the words Page 48 of 91 actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the^, language of the provision itseli||| to the purpose of the provis and the backurou preparation In M/s Mwafranchi and Construction Corporation Lt^ys. Mr Sil Civil Appeal No. 104 of 2011 well she In tha^^gse as involved in interpretation of a “First .... Second, the intention of the parties ... was to be gathered primarily from the terms and conditions stipulated therein and not the mere appendage of their signatures to that instrument.... ” Page 49 of 91 Referring to Mitra’s Law of Contract and Specific Relief, 6th Ed., 2011, pp. 177-178, the Court went ahead and stated that: “It is well established that, the Court, in order to construe an agreement, has to look to the substance or the essence of it rather than to its form.... It is true that the nomenclature an< description given to a co^act is not determinate of the real however ye ed from^ the terms an the effom and oosing out ate effects of result.” principles and, looking at the entire ble to its concluding Clause 7, one would ^w correctly so as I do, that, in the first place, the ^reement^^xh.P.l, P.2 and P3) were concluded to facilitate the carr^^^^m of the Defendant’s mining venture in its “Special Mining Licence (SML18/96)”. According to the section 4 of the Mining Act, Cap. 123 R.E 2019, a "special mining licence" is defined as “a licence for large scale mining operation, whose capital investment is not less than US$100,000,000 or its equivalent in Tanzanian shillings” This Page 50 of 91 means that, the kind of mining operations carried out by the Defendant constitutes large scale mining. In their testimonies which were given during cross- examination, Dw-1 and Dw-3 told this Court that, one cannot be licensed to operate a large scale mining if there are no areas designated for waste management as well as buffer^^ne(s) where flying rocks would fall during blasting of ro^s in th^^urse of It is for such a reason, therefore, tll|kthe title shown in Annex. Plan to Exh. at page 1), were incorj^^^ wid^^the Mining Licence” of the Defendant subg|B^ of course prior arrangements with those priortj|le rfjj^ders, o^Srangement exhibited by Exh.P. 1, P.2 a^^^.P.^^ nexFconsideration that flows from the above'^^ade^^aderstan^^^, therefore, is how those facilitative tailored apart from what Clauses 1.1 of |the Exh.'^^ l^^nd P3 provide? In other words, how were the ^ntinued bAeficial rights of the prior holders of the mining rights claim title areas” guaranteed under those facilitative arrangements? That question brings me to the analysis of Clause 3 of Exh.P.l to P3 (the Clause I reproduced earlier here above), and, as I stated, that Clause is similar in all three exhibits (P.l, P.2 and P.3). Page 51 of 91 In my view, and having carefully looked at the chapeau of Clause 3 and at Sub-clause 3.1, the natural and ordinary meaning to give to Clauses 3, 3.1 and 3.2 of Exh.P.l, P.2 and P.3 is that, apart from what the parties had agreed under Clause 1 sub-clauses, 1.1 and 1.2 and Clause 2, the parties agreed also, that, should the Defendant “commence mining operations” on any^jt of former claim title areas, the Plaintiff would be entity to be at the end of each calendar quarter calculated as quarter at the London spot gold price xa^^^^^^gold produced'’ from “any part of the ar^^^^ea^^h^^plicatiod\ However, looking at t^^hlic^^A^^^^^^^ one would wish to know and, for better cA|y wAghey exactly mean. In other words, what diplhe parties u^^^porf" regarding the term commencement^ n^ing whether such had any link to the pa^nl|kof roy|^ or it is only when “gold is parties? EsserAlly, those italicized words which are drawn from Cla^^^^^M 3.1, need to be given more clarity if one is to effectively address the second issue. The reason for that need lies behind what I stated earlier, that, although the agreement might have become a poor bargain for the Plaintiff, it is however, not the Court's function to improve that bargain. Instead, the court's Page 52 of 91 mission is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. In the decision of the UK's Supreme Court in Woods vs. Capita Insurance, [2017] UKSC 24, for instance, the Court was of the view, paras 10, 13-14, that; Textualism and contextualism are not conflicting paradigms in^ battle for exclusive occu the field of interpretation. Rat and the judge,^p meaiffig of thj to express extent to the particular agreement or ligrcements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The Page 53 of 91 correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example, because of their informality, brevity or the absence of skilled professional assistance. .. There may often therefore be provisions in detailed professionally the fac Ss^trix of si|gflar provisions i same ||,above premise, if the words contained m Clause 3 lExl^^2 and Exh.P3 are read in context, and having fpurpose of the provision and the background to the prepat and production of the agreements themselves, one will find that, the same was prepared with the influence of the governing law and terms used in the mining industry. As such, a revisit to the meaning ascribed to them from the law itself would be more Page 54 of 91 meaningful as part of the context under which the parties were operating and consummating their bargain. At the time in question, the governing law was the Mining Act, No. 17 of 1979. Under that previous legislation governing the industry, and being one under which the parties sealed their transaction, and, even under the current Mining Act||gap.l23 R.E 2019, terms “mine”, “mining”, and th|k. operations”, seem to be given wider meaning. According to the Mining Act, Caif pterin “mining” “shall be construed ace being that, the term “mine ” h when used as a noun, the mws, orKB any eratl^h^onnected^Oth mining irried er with all ises, erections and belonging or lereto, above or horizontal boundaries of the licence, the purpose of mining, treating or preparing minerals, obtaining or extracting any mineral or metal by any mode or method or for the purpose of dressing mineral ores but does not include a smelter or a refinery.” Page 55 of 91 The above legal definition seems to be applied even in other jurisdictions. In the Canadian case of MNR vs. Bethlehem Copper Ltd 74DTC 6520, for instance, the Supreme Court of Canada pointed out that, a mine was a combination of the mineral deposits, the workings and the equipment as well as the machinery needed to extract the ore. term "mine” is used as a verb it: operations direjgjy necessary incident: such||irocessing|of mi luce a SIS ^Ahe term ‘‘‘‘mining operations” a wider Mining Act, Cap. 123 R.E 2019 (which is he simi ion as in the previous law the Mining Act No. 17 e term '‘‘mining operations” to mean: "operations As I stated earlier, this definition is spacious enough to comprehend every activity by which minerals including gold ores or gold bearing rocks, are extracted or obtained from the earth irrespective of whether such activity is carried out on the surface or in the bowels of the earth. In his testimony upon being re-examined, Page 56 of 91 Pw-3 told this Court that, “mining operations” as understood by the Plaintiff, embraces all processes or activities which lead to obtaining gold. Likewise, during cross-examination, Dw-1, Dw-2 and, even Dw-3, admitted that, the term “mining operations” include laying of infrastructure such as hauling roads, berms and benches, blasting activities, drilling, stripping o^^rip-mining, loading and rock or mineral ore hauling,^tacking^^ushing, processing of mineralised ores to mention but Basically, such understanding b^^^-3, ^^^^^^^inds support from Dw-1 and Dw-3 is -^^^wit^^e {^vision of the Mining Act, Cap. 123 R.E 20 ^^r because all such are regarded as ac^^ties^^opef^^is carried out in the course of “mining^, Jgjjterm “miniate, having been used as an action verb. Essential® as s< any opehmons directly or necessary therefore or incidental thereto, including fiich processing of minerals as may be required to produce a first saleable product.” (Emphasis added). It follows, therefore, that, mining operations include a chain of processes up to the obtaining of a saleable product, i.e., refined gold. Page 57 of 91 Having gleaned such understanding, I find, however, that, there still remains a question to respond to, which is: were all such activities or processes taking places in the “area covered by the application” (i.e. the “former Claim Title Areas”*? A response to that question does take me to the testimonies of the witnesses who testified before this Court and the documentary evid^^al materials available before me. In the first place, an^, accordt||^ to the testimonies of Pw-1, Pw-2 and Pw-3, the Areas” are being fully utilised by th^Defen^iMor ^wwz’wg operations” and other activities an<^^^^> m^^g derations. In my view, the more testimony to rely on is that of Pw^^^p wa^^rt of^^)laintiff s team which made an inspection the said ^Claim Title Areas” following the jMers|||f thi^^^^ s^^t and granted to the Plaintiff on th^^^Fulv^tel. Duri|jg his testimony he tendered in Court ^^^^vhic]^^s a^^Ed by this Court. According to Exh.P^^hos^urposes^^^er its pages 1&2) were to verify the claim title areas” and identifying ^compon^^a^^ctivities taking place within the “former claim areas”'Ae physical site inspection of the areas concerned took 0th day of August 2021 Pw-2 did testify to this Court that, it involved a team from the Plaintiffs side (himself being part of it) and, a team from the Defendant’s side. The team involved, as per Exh.P5, was composed of the following: Mr. Josephat Muniko Mwita, Mr. Heri Louis Kayinga (learned Counsel for the Plaintiff), Mr. Steven Josephat Page 58 of 91 Mwita, Mr. Leonard Vincent Bamuhiga, Mr. Michael Daniel Bangili and Mr. Ramadhani Luku Semsambaa, these forming the Plaintiffs team. As for the Defendant’s team, it was composed of: Mr. Faustine Malongo (learned counsel for Defendant), Mr. Alex Nkaizirwa (Mine Survey Superintendent) and Mr. Edger James (Senior Geologist). Pw-2 and Exh.P5, the Minin^^^ht currently being utilised for go^^^rin^^e stll^ piling (dump), and supports a reinforced|^merete wall^^^ Abater piping systems, observation to1^. an^brms^^^^t ^^ch of Nyabirama Pit, in particular the ':^^^rm^^ph of^^^birama Pit. Pages 4, 9-13 of Exh.P5^^^^yide i^^es arBRJxplanatory observations of what kind ^^pmpAsnts exi^^fcd activities are taking place on the It l^^or^^oting, as well, that, in their testimonies in chief wid during weir cross-examination before this Court, Dw-1 and fed that, the Defendant did construct a berm on the former Mining Right No.TR 13/91 and that, the Defendant did carryout stripping in an areas said to be approximately 342.556m of the former Mining Right No.TR 13/91. According to Thomas M. Pantratz’s Environmental Engineering Dictionary and Directory, Lewis Publishers, CRC Press LLC, London/New York Page 59 of 91 (2001), at pg. 242, strip mining refers to ‘[a] method of mining where surface soil and strata are removed to gain access to the mineral deposits. ” In one Australian income tax related ruling, TR95/36-Income Tax: Characterization of Expenditure Incurred in Establishing and Extending a Mine, it was stated, at paragraphs'^,47 and 51, that: cro^^^^^mation Dw-1 and Dw-2 denied that, in the course of carrying out stripping on the former Mining Right No.TR 13/91 the Defendant did not produce gold there-from, it is clear that the purpose of stripping/strip-mining is to gain access to the mineralised deposits underground and, as the evidence reveals and the testimonies in chief of Pw-2, Dw-1 and Dw-3 indicates, the first Page 60 of 91 berm/bench to the Nyabirama pit was, therefore, constructed on that former Mining Right No.TR 13/91, and gold is being mined from that same pit as admitted by Dw-1, Dw-2 and Dw-3. In this case, the method or type of mining applied by the Defendant is the open pit mining, also referred to as open-cut or opencast mining. Open pit mining is essentiall^strip-mining applied in concentric circles. (See: Cases De^ed in 165). The pit in the centre grows ever and grow ever wider in diameter, Ig with land stripping, as Dw-1 aj Australian Tax case TR95 in paras. 60 and 62 that in an opencast involves ^kvation of the upper bench ||^me waste rocks that form 9 haulage roads or ramps. Bench widths or berms are also designed to provide protection for men and materials from small slope failures.” In Cases Decided in the United States Court Claims, (supra) at page 164-165, it is stated that: Page 61 of 91 I The flat part of an open pit bench, called a “berm” must be at least 65 feet ...A width of 85feet is desirable for the efficient operation[s]...since broken ore and waste blasted out of the bank falls in a loose mass... must come to rest track...The mining opera must. proceedj from the lb i|| level or bench dowi a lower bank can be berm above n make ext >weOyel ca'Me As it may be ndted|| ere above, all those activities pointed herefore, for purposes of ascertaining ns set out by Clause 3 (chapeau) of Exh.Pl (which is the former Mining Right No.TR 13/91\ like the “grant of mines and minerals”, is a question of fact. To borrow the words of the Lord Chancellor in the case of Magistrates of Glasgow vs. Farie [1888] UKHL 229 (10 August 1888), referring to the words of Lord Justice James in the case of Hext vs. Gill, July 22, 1872, L.R., 7 Ch. App. 699: Page 62 of 91 “—what these words meant in the vernacular of the mining world, the commercial world, and landowners” at the time when they were used in the instrument it is necessary to consider.” As already demonstrated herein, it has beelf|||iade pretty clear, through the testimony of Pw-2 and as .^^^Exh.P^^d also Dw-1 and Dw-3, that, part of the former M^^^^^ght 13/91 has been strip-mined and a berm/bAh ere the Nyabirama pit from which go resfce Defendant as readily admitte^^p)w-^^w-2<M^p/-3. With that in mind, it follows, ther^^^thatj'^^t thltbprds: “if ffaGM commenci which in ^||jpse '^^^^xh.Pl meant, (“in their the vema^& of Aie mii^^^vorld, the commercial world, and a^^^^^^pnehes/berms to access underground deposits, conduct drilling and rock blasting, create ROM pad (the surface area upon which haulage trucks shall drive to deposit Ore onto the ROM Stockpiles) in any of the claim areas (including the former Mining Right No.TR 13/91) and, as well, whenever the Defendant gain Page 63 of 91 access to the mineral deposits in any of the claim areas, all such steps will amount to commencement of mining operations. Put in another way round, it means that, commencement of mining operations include all acts meant to gain access to the mineral ores at the bed rocks, and would include the carrying out of activities such as drilling, hauling through haul road|||construction of berms and benches to facilitate deep minin^^blastin^^tivities, loading and rock or mineral ore hauling, stac^^^^^shi^^^^ processing of mineralised ores, all of wh^^accoA^^^^^and, as per Exh.P5 and the admission ai^^w-^^re activities taking place as the former My^g I am also mindful oOhe fAljhat, tibgype of mining carried out by the Defendant i|Bh open pit mmljig^In ihat sort of mining as ie|ms is a necessary step in ations and, by itself amounts to com] and DwjL suclmre for th||jmrposes of securing the stability of the iMb v^^^^^^^^the dipper ore reserves. Dw-1 and Dw-3 read^^d^^hat, berm/benches constructed at Nyabirama Pit i|pre part oqpiat mining pit. Dw-1 admitted, as well, that, as per the a^feble^^wironmental standards, one cannot be licensed to operate a mine if there are not areas for waste management. In view of all that, it is my considered finding that, such activities constitute “commencement of mining operations” in the language of the parties under Clause 3, which commencement triggers the applicability of Clause 3.1 and Clause 3.2 of the Exh.Pl Page 64 of 91 (in respect of payment of royalty equal to 1% of all gold produced from the former Mining Right No.TR 13/91. However, it is worth noting, as stated by Dw-1 and Dw-3, the former Mining Right No.TR 13/91 forms part of Nyabirama Pit which is one of the Defendant's Pits with active gold production. In view of the above, the basis for the requis^^iayment of the 1% royalty, therefore, must be data regar^^produ^^i from, the Nyabirama Pit where the former Mining located. It cannot be the entire areas fr^^whi^^^^^^Shdant carries out mining operations sin^^^^^di^^)t ^1 within the purview of the parties unders^^^ing ^^^ori^^^^s^er Exh.P.l, P.2 and or P.3. And,^^^.s r^||jl, I even con^me^ my findings to only data warding modu^^^^om the Nyabirama Pit where the form^^Iii^^ Ri^K^^R^3/91 is located since this is connected to^^^pen^^^^^^^^rations in that former mining rights b^^^^endai^, Jioldjlt to be sj»ecause, as it was stated over a century rd President who presided over the matter the cas^f Liquidators of Linlithgow Oil Co., Ltd vs. Earl of |sebery W03] SLR 41_24 (10 November 1903), an, excerpt io be relevant to this case at hand “It is no doubt true that mineral royalties ... are paid, not for the use of the subjects let salva rei substantia, but for the Page 65 of 91 right to dig and remove part of the estate....” (Emphasis added). Clearly, since the Defendant has dug, strip-mined, and constructed a berm/bench on the former Mining Right No.TR 13/91 (which is the subject of Exh.P-1 and, which forms part of Nyabirama Pit, from which the Defendant is ^so currently “digging” and “removing” mineralised ores from whAkthe final product in the name refined gold is obtainedj|pl| therefore, that, the Plaintiff is entitled to |^ment^ It is my firm view, therefom^that, HkDe dant did, not only commence mining operaAnsT^ No.TR 13/91 (which is the of Defendant is producinggold out of s™ ■apj||!> RE 2019, the act of ro erals as may be required to produce r' The Defendant does all that. n the case of Mr. Josephat Muniko sense [dictate] that she was [is] duty bound to provide production reports in respect of the mining activities in all claim areas.” Page 66 of 91 As regards the same issue in respect of the former Mining Right No.TR 14/91, it was as well the testimony of Pw-2 that, that former mining right, is being utilized for activities ancillary to mining operations, including reinforced concrete wall fence, monitoring boreholes, haul road, community road and Mine patrol road, and buffer zone as well as for residential occuApn by locals of Nyamongo. Pages 14-16 of Exh.P5 do .provide "w^criptive information gathered on the ground by Pw-2. What is of significance as per Exh.^^ tha^^^^^^^>land described as former Mining Right/^^^^.4^^H^^a. important buffer zone to the mining op^^bns^^i^^fc^^^l^ Defendant. However, Pw-2 was catejj|jgal t^^o ac^^ mining operation had taken place on this forwrclaim title As regar^^A^^me>^^^^r ^fqght No.TR 15/91, Pw-2 stated that, thd®||^is A^bein^^ffised for activities ancillary to mining^^^^^ions,<^^clu(f^^^ecurity (observation) tower, . reinfol®d concwte wall Afc waste rock dump, haul road, offices ng, Run- of-Mine (ROM) Pad, and patrol proad. Pag|bUmb23 of Exh.P5 do provide elaborate explanation |whysically dfiserved .... < by Pw-2 during ... site inspection. Activities on mg Right No.TR 15/91, are better linked to activities done on the Mining Right No.TR 13/91, particularly so, because, this is the place where Pw-2 found a gold-bearing-ore-dump as stated on page 11 of Exh.P5, and this ore dump was found adjacent to the Nyabirama Pit within the former Mining Right No.TR 13/91. Page 67 of 91 As per Exh.P5 and the testimony of Pw-2, the dump might have been created because the ROM Pad which is found on the former Mining Right No. TR 15/91 was full or it was a mechanism to cut down the cycle time of the haulage trucks. The explanation is indeed reasonably sufficient. The ROM Pad at the former Mining Right No.TR 15/91 was found to be closer to the pf^essing plant as a major gold-bearing-stockpile receiving l^-ce for^^ mined from the Nyabirama Pit and Gokona operatioi^^^^^ul well passes through this claim right to fj^^<om^^^^a^^sher from where the gold bearing or^fcg^ fedlhnd process of extracting gold from them coimAnce^h^ I^Exh.5. As stated by Pw-2,Jfe? fof9er Miffing Right No. TR 15/91 (Capital Drilli^^,wh^e fun^m^^Lre^ital in enabling mining operations to '^^^per^^peci^^^From my assessment of the evideni^^p^^e fac^^pres^^^fty Pwl, Pw-2 and Pw-3 and the admissions mail by Dw^^^d Dw-3, I do come to a considered ^the fort^^^^^g Right No. TR 14/91 and No.TR 15/91, ijbverthelesAthese two claim areas, as correctly stated by Pw-2, irovide support to the achievement of the main goals of the Defendant, which support was the basis of the consideration paid for by the Defendant to the Plaintiff as per Clause I and Clause 1.1 of Exh.P-1 to P-3. Since it is undoubtedly clear that the Defendant has commenced mining operations in Nyabirama Pit and the former Page 68 of 91 Mining Right TR. 13/91 is part of such operations, the rest of former claim rights (i.e., the Mining Right No. TR 14/91 and Mining Right No.TR 15/91) continues to provide support to the Defendant to extract mineralise ores from the areas such Nyabirama Pit, where mining operations has commenced. As I extensively discussed herein earlier, the former Mining Right 13/91 is located within the Nyabirama pit and, according to tAkvailable evidence from Pw-2, Dw-1, Dw-2 and Dw-.^i^^ pi^^^y mining is currently taking place. On the overall, therefore, th^^^^ is'^^is ^ponded to in the affirmative and, more ^^^Isel^^i former Mining Right No.TR 13/9/L of Exh.Pl, and which is linked to ti^pNyabirama Pwfrom which gold ores are currently being ^ne^proces^^^^ rained gold is produced by the Defendan^^^^ th^^ding,^^gear levers of consideration shift to^^^^ leve^^iich'^^fethird issue. Essentially the third issue i^fefolloA: ^B^^tflswer in the second issue is in the affirmative, whether the efendant is in breach of the terms and conditions of the three agreements by failing to pay the accrued royalties.” In law, a breach of contract is a material non-compliance with the term(s) of a legally binding contract. It occurs when one of the parties fails to perform his/her obligations to the detriment of the other party. It is also well settled that, in a contractual relationship, Page 69 of 91 each party is expected to honour her or his contractual obligations. This is to say, each party is entitled to perfect performance of the terms agreed under the contract and each expects to obtain the benefit of the deal agreed by the contract. In this respective suit, the Plaintiff and the Defendant executed Exh.P-1, Exh.P-2 and Exh.P-3 with full e^gpctation that each of them will fulfil her obligation to the As I stated herein earlier, the former mi^^^^ts eA&hil^ held by the Plaintiff were not surre^^ed f^^^^^Bfepidant gratuitously. Under section 70 of t^^^ of^^tra^Vct, Cap.345 R.E 2019, the law is clear thatrjf^ “ Where z/a^persoWaw: anythSg for another Wpon. th enjoys the the casew hand, the act of surrendering such rights based on and conditions one being of them being that, whenever mining operations commences in any of the “former claim title areas”, then the Plaintiff will be entitled to 1% of royalty from gold produced from any of the “former claim title areas”. In essence, and as discussed earlier in response to the 2nd issue, the Defendant did certainly commence mining operations in Page 70 of 91 the former Mining Right No.TR 13/91. As the evidence revealed herein, the former Mining Right No.TR. 13/91 which is the subject of Exh.Pl, is linked or forms part to the Nyabirama Pit from which gold ores are currently being mined, processed and refined gold obtained by the Defendant. Despite such a proven fact as per the avail^le evidence herein, the Plaintiff has demonstrated through testim^^in chief of Pw-1 and Pw-3 that, since 1999 the Plairw^^^iev^fch^^ from the “former claim title arec, evAreceived her any of the a vs. Aveline M. rttled lawnhat parties are agreements they irered into and this is the Bhatia Brothers Ltd [2000] T.L.R 288 at page 289 thus: - 'The principle of sanctity of contract is consistently reluctant to admit excuses for non-performance Page 71 of 91 where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement.” With such an understanding from that settled legal principle regarding sanctity of contract, it is apparent that, th^^i-payment of the 1% royalty to the Plaintiff followin^^^men^^^nt oj mining operations in the Mining Right J^o.TR subject of Exh.Pl, and which is linked to^^Ny^^^S rflhrom which gold ores are currently bei^^fc^^^^^ss^. and refined gold produced by the Defen^^^amo^^ to ^^^^ght breach of Clauses 3, 3.1 and 3.2 ofSB third issue is as well r onde^^^ffiri^^^ly. Howeverj^^hotAbe nmed At, mat affirmative response is only with e Mfriin. ht No.TR. 13/91 because, as pn above, the rest of the former mining although they are, as well, providing achievifig the Defendant’s ultimate goal of mining ^from the areas from which mining operations e comm|j|ced, one being the Mining Right No.TR.13/91 which is 11 the Nyabirama Pit from which gold ores are currently being mined, processed and refined gold is produced by the Defendant. The fourth issue calling for my attention is that: ‘In the event the answer to the third issue is in the affirmative, whether the Page 72 of 91 Plaintiff suffered specific and general damages. ’ Under section 73 (1) of the Law of Contract Act, Cap.345 R.E 2019, the law provides for what should be a remedy for breach of a contract. As aptly captured in the case of Puma Energy Tanzania Ltd vs. Ruby Roadways (T) Ltd, Civil ^ppeal No.287 of 2020 (CAT) Dodoma (unreported): “Where a contract has bee broken, the party who su|fe such breach is entitled to re compensation damage causg| other p -z <z mustjpise naturally usu® f thin^^^^suc^^^fcch, ^the partie^taiew will to result breach of contract.” mid by the learned counsels for the or the award of damages to an aggrieved arty in the same position as if the contract as agreed. That, indeed, is in line with the principle 6 in integrum” as stated by the Court of Appeal in the case of Cooper Motors Ltd vs. Moshi/Arusha Occupational Health Services [1990] TLR 96. In this case, the Plaintiff has sought for compensation in the form of specific damages as well as general damages. I will start by Page 73 of 91 examining the issue of specific damages. Basically, it is a settled law that, to be payable, specific damages must, not only be pleaded, but also be strictly proved. The Court of Appeal decisions in the case of Zuberi Augustino Mugabe vs. Anicet Mugabe [1992] T.L.R. 137 and that of Xiubao Cai and Maxinsure (T) Ltd vs. Mohamed Said Kiaratu, Civil Appeal No.87 of are quite illustrative on that. In the case of Zuberi ^iigustnOMugabe (supra) the Court of Appeal was of the view tha^^^^ In this present mt, the Plaii^ff has^pleaded for specific losses claimed to have bee:e^^^&rec^^hich is equal to US$ 21,610,827.00 these tgfFbe the 1% accrued royalty revenues to mSWpress terms of Exhs.P.l, P.2 and have b^^yaid. In efforts to prove such amount, ^^^^h^-on various reports from TEITI. multi-sectoral entity establish under ^^e Tan^nia^ Extractive Industries Transparency j^^^ontaJ^fty Act, No.23 of 2015 with the aims to increase transparency and accountability in the extractive industries in Tanzania. Ordinarily, TEITI’s reports disclose aggregate payments made by major mining and gas operating companies to government, which disclosure includes amount of royalty paid during a particular Page 74 of 91 fiscal year. As correctly stated by Pw-3, TEITI’s reports are indeed readily accessible worldwide online from http://www.teiti.go.tz. It is worth noting, however, that, although this Court admitted them as Exh.P7, that admission was done on the account that they are statutorily mandated reports widely accessible by whoever wishes to access them. That fact, however, does not^ean that this Plaintiff. In short, Exh.P7 cannot constitu yardstick in Plaintitt in line with Clause 3.1 anc rse inference may be drawn against the Pj^ndaAf further explain below. I hold it so beca in its ruling made when ^nel^^or that j^ds to be taken aboard before deciding i^^ie cm SFfor specific damages are proved or no >the utility an^^ight which I should accord to Exh.P7, Bjw-3, who produced them as Exh.P7, is not view, c now In essence, it is one thing to state that Exh.P7 establishes that, the Defendant declared production of gold worth the amount so disclosed to the general public but, it is quite another thing to prove that such exact amount of gold so declared to be produced by the Defendant as per Exh.P7, was produced from any of the claim Page 75 of 91 areas. In paragraph 21 of the Defendant’s Written Statement of Defence (WSD), the Defendant did admit clearly that, TEITI reports publish minerals and total revenue produced from the Defendant’s mine site, including mineral produced from various areas owned by the Defendant and/or areas owned by various former claim owners and no TEITI report from 2013^^^019 covers gold produced from the Plaintiffs claim areas I have noted, indeed, that, in their closi^.’^^^ssio^^^^ title areas by t^^^^n^^^Th^^ytended that, the Defendant is thus as ^^acts regarding gold production are facts within <^kDefeAant’s kn^^fcdge. |hhe onus of^proof has by a prima facie evidence discharged her Iduty, then, the onus of rebuttal will thereby shift to her opponent who should now be required to discharge it. Should she fail to discharge this onus of rebuttal, the prima facie evidence of the first party will be regarded as sufficient evidence for purposes of discharging the main onus of proof. See, for that matter, the decision of this Court in the case of Professional Plaint Centre Limited vs. Azania Bank Limited, Page 76 of 91 Commercial Case No. 48 of 2021, (unreported) (citing the South African case of Senekal vs. Trust Bank of Africa Ltd 1978 (3) SA 375, at 382-383A.) Besides, I am as well mindful of what section 115 of the Evidence Act provides, that is to say: “In civil proceedings when any fact is especially within the knowledge of any person, tht| burden of proving that^ct is upon him.” Further still, I am also in wh fie Plaintiffs counsels that the Defendant lus of rebuttal to the Court the co^ct dat^^^ich have established a contrary positi^Athe^ian x^hat^^s tendered in Court by the Plaintiff. •r,. whatever weakness may be noted on ^ine with recrements of section 16 (1) (a) and 17 (5) of the ^^izania Jpltractive Industries Transparency Accountability Act,"^^^^of 2015. As a matter of legal principle, it is trite that, the basis of any sound decision of the Court should not be the weakness of the defence but rather the strength of the case for the prosecution/plaintiff, (see the case of Tanzania Cigarette Co. Ltd Page 77 of 91 vs. Mafia General Establishment, Civil Appeal No.118 of 2017 (CAT) (unreported). In this particular suit, therefore, and in respect of the agreed fourth issue, what needs to be established is if at all the amounts so declared in Exh.P7 were indeed a product of gold specifically produced from any of the former claim areas. As Stated herein In the case of Profession™ Azania Bank Limited, CcyAierc througl L^^n^^^Exh.P7^Which the Plaintiff relies on, the same prove^that the respective amount shown to be disclosed 1^thit|efendant were exactly obtained from the former ^^m areasjAid in particular the Nyabirama open-pit to which the fori^^fi^Kg Right No.TR 13/91 is linked. As I stated earlier, Exh.P7 gives, but an aggregate view which this Court cannot rely on it as the basis for calculation of the Plaintiffs entitlement to 1% of gold produced by the Defendant from such former claim title area. As such it is my considered view Page 78 of 91 that, no weight can be attached on Exh.P7. And, if it was to be relied upon, it could only be for the sole purpose of acting as mere pointer to the fact that the Defendant is in reality producing gold and complying with the disclosure requirement under Tanzania Extractive Industries Transparency Accountability Act 2015 and its Regulations, but nothing more in relation to its^^efulness in establishing the specific claims made by the Pl|iptiff. A^^h I will not, at any rate, rely on it at all and it has decisive effects in this case at all. Put differently, Exh.P7 is of^^^^e i^^tal^hing that the specific amount claimed by^^Pla^^f from the former claim areas. Tl^^^ng legally the Plaintiff may be entitled to p|^ment of spe<^^^dgn^ges, technically the amount claimedJpth^lainti^^^^^t strictly proved to have arisen or deriV^^^m ^^^nt of|^ production solely produced from t^^^^^clair^^as. Apasti, it i^^^finding that, the fourth issue can only ^^^^^n^^^^^fc^'affirmative if disaggregated information ^regardin^^ld^^duction in the former claim areas is looked at and ^)t the aggwgate data which the Plaintiff has relied upon. What th^^^^^Oe the appropriate data to be used by this Court having held that the Plaintiff is entitled to 1% of royalty which flows from the quantity of gold produced from Nyabirama Open-Pit? As earlier discussed herein, there has been no data given by the Defendant and the Plaintiff has no other means of getting such data as the Defendant would not make such disclosures, this being Page 79 of 91 the 23 year of darkness on the part of the Plaintiff, and, hence, the filing of this suit by the Plaintiff in search of her rights. Indeed, one can understand the difficulties which the Plaintiff has been or may be facing in getting the right information from the Defendant, taking into account that, she cannot monitor the daily operations of the Defendant or access data<^arding what is daily produced from the Nyabirama Pit amLdaking i^^account the ui ,, problems r noted earlier • respect+ of Clause ^nl^^ntr^^^^ + a in Exh.Pl as a whole, regarding disclosure i^brmati^^^^^^^^ The difficulty is further exaq^^^^ a^^^m^mded by the fact that, even the Defenc^^’fail^^to'^^^^^^n her own independent and disag^^gted^^. fr^^her operational open mining pits, the Nyab|^mia Pit, bein^^e^o Aiem. Noting such a situation, should this (Wirt fol^^^hand^^d tell the Plaintiff, well you are indeec^^^led^^his^^pt is of no assistance to you, thus be filled" while knowing that what ^^lain^F has co^^ked to be denied for the past 23 years to this Court? f iri^he cthkof Mohamed Idrissa Mohammed vs. Hashim ||youb Jaw [1993] T.L.R 280, the Court of Appeal held, in^feetiv^^Fthat: “where a party to the contract has no good reason not to fulfil an agreement, he must be forced to perform his part, for an agreement must be adhered to and fulfilled.” (Emphasis added). Page 80 of 91 The question that flows from the above quote from the Court of Appeal is how should the Court do that? How should that party be forced? Principally, and from time immemorial, Courts of law have been regarded as temples of justice. However, if justice is to reign, truth must prevail and injustice abhorred. To bring justice to its seat of primacy in any litigation, therefore, the fuhfamental duty of the Court should be to ascertain the truth do ju^thg on the basis of that truth and within the precincts of th^^^^^^ To amplify further on that, perhaps^^iould^^^^^Mtfmn. Mr. Justice J.R. Midha of the Delh^^^Co^^nc^^tated, in the case of Ved Parkash KharWttda (8 March, 2013), at paragraph l^^^that^^e, tr^^arned judge had the following to say, that: Judicial Process ^^s of justice. speril|||»^of justice, based on ith, is diRsssential feature in the justice^delivery system. People ould have faith in Courts when truth alone triumphs. The justice based on truth would establish peace in the society. The similitude of the above are the words of Justice Krishna Iyer J., of the Supreme Court of India in the case of in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 who described truth and justice as under: Page 81 of 91 “...Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in delivery agent of full fairness: In his defence for his reasoning ^put t Court should play in discove nes injustice and unfairness, Mr. Justice J. Kharbanda vs Vimal Bin “This agation is the d to re^^^^urse^^^hat ;'j^kpiar ofjust^^according f isolated problems but ffigfconflict in its wider In Mohanlal Shamji ’ v. Union ofIndia, 1991 Supp p) SCC 271, the Supreme Court observed that the presiding officer of a Court should not simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost and that there is a legal duty of his own, Page 82 of 91 independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. ” Perhaps I should add one or two other thoughts provoking ideas regarding the need to promote fairness and uproot any seed of injustice in the utilization of our God-given precious^piurces. In his letter titled "Letter from a Birmingham J^^^ng, J^^dat^ 16th April 1963, Rev. Martin Luther J^^un^^^^et^^ty writing to his fellow clergymen told them anyChere is a threat to justice everywhere^ The above quoted wo^^^Re'^^artin^^^kher King, Jr., though given at a dif^^^ftontext^^ for^different course, do, nevertheless, possess ^cross-^^^ ef^^fend, hence, revealing a sense of relev^^^and^^lication, jBbn in the present case. I hold it to be sq^given tlg|k the ^^JRhis Court, as already stated, is rooteq^^promwng trut^^Ajustice. hen should be said of the Plaintiffs ^late r^^^in^^er entitlement to 1% royalty payment from the ^)efendant^vin^held that she is entitled as per Exh.Pl? How s^^^d this^ourt play its rightful role of ensuring that truth is reveafelFand justice and fairness prevail over any injustice so far suffered? These questions have be-laboured my mental faculty in a great deal. However, being mindful of the fact that truth sets captives free, this Court was contented that in its pursuit of justice and fairness, there is always a way out. Page 83 of 91 Being mindful of its noble duty of upholding the truth and administering justice in a fair manner, and, while fully aware that the Plaintiff herein knocked at its doors because she feels that she has suffered injustices for almost 23 years, this Court decided, suo ■L moto to summon the parties on the 06 day of March 2022, to allow them to further address it on an issue which it consi|l|rs necessary to be addressed and where possible dealt with^ truth, fa^ess and justice are to be administered by this Court^^^^^p to^^^^ administered by all parties. The summoning of the nar^^fo ad^bss Ws Court was position emphasjpd i^ie cas^^^^e<^Krima and Two Others vs. ScandinaX^^^^rvi^^Lim^^^ Civil Application No. 34 of 2008 ('^^^toed), ’^^n Mpaki v. NBC Ltd and Ngala^f NgoiLani, C^^Vppeal No. 95 of 2013 (unreported) Salum [1993] TLR 208, to mention but On th®P6th day of March 2022, therefore, Mr Kayinga, who .q Plaintiff, appeared in Court, while Mr Malongo appeared for the Defendant. To be specific, the Court put across to the parties the following issue: Whether it is just, appropriate and, hence, necessary that this Court should be availed with Page 84 of 91 information from the Defendant regarding the following: (a) Gold production, in terms of amount produced and its value from Gokona Pit- from the year 2013 to 2021. (b) The amount of Gold and its value from Nyabirama Pit from 20 l^^o 2021 and. (c) The amount of gold and^ value^^ produced from^Nyabige^^’it from 2013-^li^^^^^^^ Having afforded the P^^^ tim^^d r^^^) address this Court in regard to tl^^^^e iss^^this^^irt considered their submissions and mad|pi decis^^^hat,^^^e interest of promoting justice to the ^^es, ^^ch i/faejj^ble:role which this Court is expected of, wlier^^ess^^^^^^mrt may invoke its powers and order ^^^^^^riate ^^gi^ls be placed before it. In view of that, the Cou^^^^^^^De^^hnt to avail to it the information stated ^K^^^v^^its disaggregated form and allowed the parties to ^ppear be^^ tl^Court on the 9th of June 2022 and address the ^^rt in resj||ct of the availed information. 9th of June, 2022, the Defendant filed the information in Court and the same was availed to the Plaintiffs learned counsel. When the parties convened before me, I asked each of them if they had any comment or submissions to make on the basis of what was Page 85 of 91 availed to the Court and served upon the other party. Neither of them had any further Comment. I have had a look at the data availed to this Court pursuant to its order dated 03rd June 2022. The Gold data extracted from the three pits reads as follows: Nyabirama Pit: Total Ounces (from 2013-2012) = 4||p6,102.88 Total Value in U$ = 1,747^^60.29 Nyabigena Pit: Total Ounces (2013-2021 Gokona Pit: Total Ounces (from^l3-20^^= Total Value ’ ^^^^7,2^46. It is worth noting, that, when thisz^^^^^^b^^d^ the 2nd and 3rd issues here above, a fmdi^^fas arAd. at that, the Defendant had comme^^^hinin^^erati^^in the former claim area under the Mininytight R l^^^whose part is linked to the Nyabirama^Afroi^zhich^^^^s^e currently being mined, processed and renf^^ol^M^^^^d by the Defendant. As such, I laintinwis entitled to a 1% royalty but such an amount®) bdfcived sqgfly from Nyabirama pit’s production and l,2<O®il® ounces of Gold whose total Value is US$ 1,747,613,260.29. If a mathematical calculation is to be made in respect of that value, the 1% which the Plaintiff is entitled out of it is equal to US$ (1Zioo x 1,747,613,260.29) which is equal to USS 17,476,132.6029. This is the amount, if it was to be spread over the Page 86 of 91 9 years of production, from 2013 to 2021 (and 2013 was the year from when the Plaintiff based their claims), then it will mean that, each year the Plaintiff was entitled to be paid a royalty of US$ 1,941,792.511433333. Unfortunately, that was not paid. It follows, therefore, that, the rightful amount payable as 1% royalty revenue to the Plaintiff from 2013 to 2021 is US$ 17,476,132.60M Having said that, what about the cla^s f°r °f general damages? In essence, unlike specific to be not only pleaded but strictly prov^^gene^^^^^^^ieed only be pleaded and need not merely avers that s/he suffered gener^^ma^^th^^^^^i^will suffice. The decided cases of^^ope^^oto^^orporation Ltd vs. Moshi/Arusha Occu^ron Health l^jripe^l 990] TLR 96 and Fredrick Wanupjg, Road Service Limited A.K.A Akamwl^ps l^^^ce v^^^wadi Juma Mruma, Civil Appeal 20 AcAT fHSeported), provide guidance to that effect ^^^^Bfcdnages are payable at the discretion of the cWase of Niko Insurance (T) Ltd vs. Hussein ^thuman l®vaifyusi & Another, Civil Appeal No. 168 of 2017 ^^^^^^^unreported) the Court of appeal stated that: "the purpose of general damages, which is to put the party who has been injured or who has suffered loss in the same position as he would have been if he had not Page 87 of 91 sustained the wrong for which he is seeking compensation.” In this case, the Plaintiffs learned counsels have urged this Court to grant the Plaintiff general damages and make a broad estimate taking into account all proved facts on balance of probabilities of this case, including the number of yeg|s the Plaintiff has been unlawfully denied her rights to revenues Besides, the Plaintiffs learned couW>ls hawkir to consider that the Plaintiff sui surface and mining rights with a legitira^^fexp^^tio^^^^^n^ revenue of 1% from the Defendant’s mmm^^eratic^bpn its former claim title areas but to date the ^pjntiff has ne^^eceiWd, not even a dime. For their part, the ^^med<^^^^els<^^ the Defendant have submitted that^^^ w^^ot bre^^and hence no entitlement to payment^^^peral ^^^ges"^^^^^ ever,fas I he' Her herein above, there was breach of of Exh.P.l, which is in respect to the 'ormer RightNo.TR 13/91. According to the testimony Pw-1 anffw-3, the Plaintiff has never been paid anything from Defendant has continued to extract gold from the Plaintiffs former claim title area, in particular from the former the Mining Right No.TR 13/91 which forms part of the Nyabirama pit. For all such reasons and, while being mindful of the fact that doing justice to parties requires understanding, transparency and Page 88 of 91 I the ability to correct existing errors or injustices, I find that the Plaintiff is entitled to be paid general damages, and, given all the years the Plaintiff remained unpaid, an amount equal to USS 300,000.00 will suffice as general damages. Lastly, we move no to the final issue, which is: to what reliefs are the parties entitled. Generally, however, if any party is to be entitled t^^efs, the said party must have established her case to th®g'^^^ staAnw As I stated earlier here above, the legal m||len o^^^^^^^ntly rests upon the party (the Plai^^^r ^^D^pidant), who substantially asserts the affirnj|^e constant, it means that, such a burd^^^giaii^^ed beginning of trial by the state of the plead^s^ and it is'^^tled Ks a question of law remaining unc^pgec^hrou^^^^^he^mal exactly where the pleadings plac^^^d i^^^shi^^^any circumstances whatever. See Jose^^fcnsta^^^ Line vs. Imperial Smelting earlier that, the standard required in civil fcases is ^^ra^expressed as proof on a balance of probabilities, t W # ^>I may rep to what Lord Denning J (as he then was) stated in IM^^^^^^inister of Pensions [1947] ALL E.R. 372; 373, 374, regarding the discharge of such a burden of proof: "If the evidence is such that the tribunal can say: We think it more probable than not, the burden is Page 89 of 91 discharged, but if the probabilities are equal, it is not." In this instant suit, it is my finding, and without a flicker of doubts, that, what the Plaintiff is claiming from the Defendant is highly probable than not. I am satisfied, on the balance of probability, therefore, that, the Plaintiff has discharge! her burden of proving this suit and, for that reason, judgement antlMlecree is entered in favour of the Plaintiff as follows, th^^^^ 1. The Defendant is hereby o^^red to pay the Plaintiff 17,476,132.6029 oi Tanzanian ^fcigs, Plaintiff titled ue royal ;he dant is he ordered to ie sum of ontract JiFrespect of the Former for the years 2022 onwards up to the closure of that mine pit. 3. That, the Defendant is hereby ordered to pay the Plaintiff Interest on the amount in item No.l above at 7% rates from the date of Page 90 of 91 judgement and Decree to the date of final payment of the amount claimed. 4. That, the Defendant is hereby ordered to pay the Plaintiff General Damages for breach of contract to Page 91 of 91