VICTOR BATULE V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA CIVIL CASE NO. 24 OF 2023 1. JUMANNE GUGUYE 2. BONIPHARCE K. MICHAEL 3. DICKSON JOHN 4. NEEMA M. KIDAI 5. FREDRICK GEORGE 6. SAKISAKI KIGANJA 7. MODESTER ROBINSON 8. MAKOYE GOSE 9. KIMOLA KIPEJA ……………..PLAINTIFFS 10. AMOS MWITA 11. CHAGU MADUHU 12. MAKWI KANGA 13. RABEKA JULIUS 14. JOSEPH S. MARWA 15. HAPPYNESS BAHARINI 16. MASHAKA MAGU 1 VERSUS JOHN WAMBURA BINA t/a JOHN W. BINA GOLD MINE….….………………………DEFENDANT JUDGMENT 17th & 31st December, 2024. S.M. KULITA, J. This is a civil case whereby the plaintiffs claim jointly and severally against the defendant in this suit for one, declaration that the defendant’s act of destroying the plaintiffs’ structures in their shafts used for mining activities without notification and consent thus causing loss and damages is illegal, two, order for compensation of the plaintiffs’ cost and expenses incurred to build the demolished structures to the tune of Tshs. 1,353,666,100/=, three, order for payment of general damages to the tune of Tshs. 3,000,000,000/= four, interest at commercial rate from 29th April, 2022 to the date of judgment, five, order for the reinstatement of plaintiffs to their former status in the mining site and lastly, costs of the suit. 2 In a nut shell the information as can be gathered from the plaintiffs’ plaint is that, as small mining artisans, the plaintiffs have been working at Imalamate Village in Busega District, in the farm of Kusekwa Bukwimba Sweya, since 2020. With an agreement entered on 2021, the plaintiffs agreed to work under the defendant, who obtained mining license on the said area. Their agreement, allowed plaintiffs to have their own mining shafts. The information provides further that, the plaintiffs, each on his/her shaft, incurred costs in making sure that, working conditions are safe in their shafts. Further, the plaint provides that, having seen that the plaintiffs are doing well, the defendant wanted to buy their shafts, of which the plaintiffs denied. Due to the denial, it is when the defendant decided to stop the mining operations on the area. It is the plaintiffs’ averment that, to their surprise and without notice, the defendant on 28th April, 2022 sent bulldozer and Policemen who supervised demolishing and burying of their mining structures. The plaintiffs’ plaint tells us further that, after the demolition, the defendant started 3 conducting mining activities in their areas while plaintiffs are forbidden even to save their demolished properties. In his written statement of defense, the defendant generally denied to have demolished any of the alleged plaintiffs’ structures. Instead, she averred that, it is the Government of the United Republic of Tanzania through her Mining Commission that stopped mining activities at the area on safety reasons. She added that, as the plaintiffs denied to heed to the said order, it is when the Government through her Mining Commission and other security forces, that forcibly removed the plaintiffs from the Mine in question. Mr. Audax Constantine, Advocate, represented the defendant, whereas the 3rd, 4th, 5th ,6th and 8th plaintiffs appeared unrepresented. The rest of the plaintiffs defaulted appearance hence their respective claims were dismissed under Order 9, Rule 7 of the Civil Procedure Code (CPC). In the Pre-trial Conference the following issues which call for proof of the case were formulated by the parties. One, whether the defendant demolished, damaged or buried the plaintiffs’ structures and equipments which were used in the mining activities by the plaintiffs at the John Bina Gold Mine, two, whether the defendant unlawfully stopped the plaintiffs 4 from conducting mining activities at the John Bina Gold Mine and three, to what reliefs are the parties entitled. In proving the raised above issues, the plaintiffs’ case opened and Mr. Dickson John, the 3rd plaintiff testified as PW1. His testimony is to the effect that, they were small minors at the premises in question before the defendant went in and informed them that he had a mining license at the said area. As they had a contract with the owner of the farm, they had to go on working at the area before the defendant wanted to enter into a shareholding with them, the thing which they denied, as it was not beneficial to them. PW1 went on stating that, the defendant wanted again to buy their mining holes but they did not agree for the same reason of being not beneficial to them. PW1 went further stating that, it happened a drunken person fell into the mining holes and died. This act made the Mineral engineer, one, Yahaya to write a letter and order the license holder, one, John Bina, to demolish all holes which are dangerous. PW1 insisted that, the letter wanted inspection be conducted and all defective holes be buried. 5 PW1 stated that, the said letter showed that, the mining activities were to be temporally stopped. With this PW1 stated that, the defendant told them that, he was finding means to deal with the said matter. To their surprise PW1 said that, on 25th April, 2022, they saw Police Officers together with other persons, arriving with guns at the premises and started to demolish their structures and properties. In that demolition, PW1 said that, he lost pump for pulling out water which had cable, pipe, motor pump and paunch machine for holes making, steal punch, hammer of Tshs. 40,000/=, spades of Tshs. 10,000/=, cable of Tshs. 700,000/=, small pump of Tshs. 400,000/= and big pump of Tshs. 2,000,000/=, small pipe of Tshs 450,000/= and big pipe of Tshs. 700,000/=, two manila ropes of Tshs. 240,000/=, pump handling rope of Tshs. 150,000/=, attaching handle that pulls luggage from the hole of Tshs. 600,000/=, two blowers for sending oxygen into holes of Tshs. 9,000,000/=, blower’s pipe of Tshs. 1,000,000/=, Timber woods for holes of Tshs. 40,000,000/= and tent which values at Tshs 750,000/=. When cross examined PW1 stated that, it was the defendant who stopped the mining activities at the site. He went on replying that, on the material date, he, PW1 was at the same premises whereby it was the Safety and Security Organs that supervised the burying activities. On further cross 6 examination PW1 stated that, John Wambura Bina has powers over Government organs that is why he called them and they actually came and demolished the site. He went on admitting that, he did not see John Wambura Bina at the site on the material date. However, PW1 admitted that, he has no receipts over the things he mentioned to have been demolished. Sakisaki Kiganja testified as PW2. His testimony is to the effect that, they started mining at the premises before the defendant arrived and informed them that he had a mining license over the said premises. PW2 stated that from there, they started working under defendant’s license. PW2 went on stating that, on 4th April, 2022 the Mining Commission wrote a letter to the mining license holder telling him that, they should improve the mining security at the premises. They stopped mining till when John Wambura Bina told them that, 75% of the premises was found maintained thus they were allowed to go on with activities. PW2 went ahead contending that, on 25th April, 2022 John W. Bina received another letter from the mining commission, that his mining site is still unsafe as it caused death of a person. He was thus ordered to bury the holes which were not in use. PW2 added that, they were informed that but before it was so done, on 26th April, 2022, bulldozers with Police Officers who had firearms, arrived and started burying 7 the holes. In that burying PW2 stated to have lost 10 pairs of gum boots valued at Tshs. 150,000/=, 3 spades at Tshs. 60,000/=, 5 spades of Tshs. 80,000/=, 7 pipes at Tshs 180,000/=, 5 helmets of Tshs. 50,000/=, 5 torches of Tshs. 60,000/=, sacks 10 of Tshs. 100,000/=, 10 tents of Tshs. 1,000,000/=, 9 local wires of Tshs. 90,000/=, Blows machine of Tshs. 5,000,000/=, electrical wires of Tshs. 200,000/=, paunch of Tshs. 40,000/=, hammer of Tshs. 60,000/=, “Moko” of Tshs. 90,000/=, Reflector of Tshs. 60,000/=, boxes of Timber of Tshs. 27,000,000/=. When cross examined, PW2 stated that, the two letters of April, 2022 were written by the mining commission. PW2 further stated that, he has no receipts for the things he lost in the demolition. Fredrick George who testified as PW3, his testimony is as equal as what PW1 and PW2 have testified above only that he had an addition to the effect that, it is the commission for mining that has buried their structures. He mentioned the things he lost as 3 spades of Tshs. 60,000/=, 6 “Moko” of Tshs. 90,000/=, 5 spades of Tshs 80,000/=, 2 pairs of gun boots of Tshs. 30,000/=, 6 pairs of Reflector cloths of Tshs. 60,000/=, 5 Helmets of Tshs. 50,000/=, 5 torches of Tshs. 60,000/=, 3 Manira ropes of Tshs 300,000/=, 10 sacks of Tshs. 100,000/=, 8 tents of Tshs 800,000/=, 8 rope wires of 8 Tshs. 80,000/=, blower machine of Tshs. 5,000,000/=, 3 pumps of Tshs. 8,900,000/=, 3 water pipes of Tshs 250,000/=, 2 Electrical wires of Tshs. 100,000/=,45 boxes of timber for Tshs. 45,000,000/=, 4 paunches of Tshs. 20,000/= and 2 harmers of Tshs 20,000/=. When cross examined, he stated that, he does not have receipts for the things he claims to have been destroyed. Makoye Gusi (PW4) his testimony is also the same as that of the former witnesses stated in addition that, in the incident he lost the following things; 32 boxes of timber valued at Tsh 32,000,000/=, 4 spades of Tshs. 80,000/=, 6 “moko” of Tsh 90,000/=, 5 spades of Tsh 80,000/=, 10 pipes of Tsh 320,000/=, 6 reflectors of Tshs 60,000/=, 5 helmets of Tshs 50,000/=, 5 torches of Tshs 60,000/=, 3 manila ropes of Tshs 300,000/=, 8 tents of Tshs 800,000/=, 9 rope wires of Tshs 90,000/=, browser machine of Tshs 5,000,000/=, 4 electrical wires of Tshs 200,000/=, 8 paunches of Tshs 40,000/=, 6 Harmers of Tshs 60,000/= and 10 Gum boots of Tshs 150,000/=. When cross examined PW4 stated that, during the demolition J. W. Bina was not there but his Manager, and that he is not sure whether the Police Officers who supervised the demolition were sent by J.W. Bina. 9 Further PW4 admitted that, he never submitted documentary proof on the purchase of the things he has enlisted to have lost them. PW5 one Modester Robinson, her testimony is as same as the former witnesses above but in additional she stated that, the people who demolished his properties told her that, they were sent by John Wambura Bina, that is why she claims against him. PW5 listed the following things as the ones he lost in the demolition. Spades of Tshs 240,000/=, 16 spades of Tshs. 160,000/=, 3 tents of Tshs 2,500,000/=, 20 helmets of Tshs 100,000/=, 10 sacks of Tshs 400,000/=, 12 torches of Tshs 480,000/=, 16 harmers of Tshs 480,000/=, 8 “moko” of Tshs 120,000/=, ropes of Tshs 2,000,000/=, 12 roller poles of Tshs 400,000/=, 23 boxes of timber of Tshs 23,000,000/=, 56 boxes of Timber of Tshs 56,000,000/=, 28 boxes of timber of Tshs. 28,000,000/=, 39 timber boxes of Tshs 39,000,000/=. When cross examined PW5 stated that, the issue of burying their properties comes from the Government but the blame goes to the defendant as he did not take trouble to notify them. Daniel John and Sabina Machuche testified as PW6 and PW7 respectively. Their testimonies are all the same as Dickson John and Sakisaki 10 who called them to testify as their witnesses. For that matter, I will not reproduce it herein. Lastly the plaintiffs’ case got closed and the defendant’s one which comprises a total number of 2 (two) witnesses got opened. John Wambura Bina testified as DW1. His testimony is to the effect that, he is the license owner of John W. Bina Gold Mine. He added that, the plaintiffs are mere invaders whom he entered a local contract with them to pay him 10% of their earnings. He said further that, because of safety issues, he received two letters which he tendered them and the same were admitted without being objected as D1 and D2. He said, the last letter came from the Government which stopped operation of the whole mining site till when new shafts are installed. He went further contending that, all people were communicated on this information in writing two weeks before, by the Regional and District Commissioners. He added that, the government is the one which effected the demolition under the supervision of thee District Security Officer (DSO) and the Police Officers. He thus prayed not to be blamed for that. 11 The 2nd witness for Defense case was Madaha Mwigulu who testified as DW2. His testimony is to the effect that, he is employed as Manager at the John Wambura Bina Gold Mine. He said further that, it is the Mineral Commission which stopped the mining activities at the premises following deaths of 8 people at the area. He went further contending that, notice to vacate the area was given since 4th April 2022 and demolition was done by the Government safety organs on 28th April, 2022. With this he said that, all people had enough notice time to vacate. For those who had rejected to vacate, the said demolition took place to them. To that point, the defendant closed her case, and that marked the end of both parties’ evidence. I have earnestly gone through both parties’ testimonies. The issues for determination remain the same, One, whether the defendant demolished, damaged or buried the plaintiffs’ structures and properties which were used in the mining activities by the plaintiffs at the John Bina Gold Mine, two, whether the defendant unlawfully stopped the plaintiffs from conducting mining activities at the John Bina Gold Mine and three, to what reliefs are the parties entitled. 12 For better flow of my determination in this case, I find it good to start with determination of issue number two. Whether the defendant unlawfully stopped the plaintiffs from conducting mining activities at the John W. Bina Gold Mine. We have seen in the summary of the plaintiffs’ testimonies herein above. All plaintiffs’ witnesses, as well as the Defendant’s witnesses testified the same thing that, it is the Mining Commission which stopped the mining activities at the area by sending two letters. One letter was sent on 4th April, 2022 and the second one was sent on 25th April, 2022. PW1 specifically in his testimony stated that, the Mining Commission were forced to write such letters, after death of person at the mining premises. However, even when DW1, John Wambura Bina who is the license holder of the said Gold mine was testifying in court, all plaintiffs never objected tendering of the said Mining Commission’s letters which specifically stopped the mining activities and ordered demolition of the structures thereby, following their being unsafe. 13 The act of admitting the said letters without being objected from the plaintiffs, guarantees their genuineness and the same act verifies that, what the parties to the case testified on who actually stopped the mining activities at the area, was true. With this, I find it that, this issue is answered in negative, that, it is not the defendant who had stopped the plaintiffs from conducting the mining activities, but the Mining Commission, following deaths of some people at the premises. On the first issue, as to whether it is the defendant who damaged and buried the plaintiffs’ properties at the mining site, the same plaintiff’s testimonies contain the following. All plaintiffs’ witnesses from PW1 to PW5 stated that, it is the mining safety and security organs who damaged and buried the plaintiffs’ properties, at the mining site. In addition to that stand PW5 in his testimony went further contending that, the properties damage blame goes to the defendant for the reason that, he never informed them of the intended demolition. However, this testimony, contradicts with testimonies of his fellow plaintiffs who testified to have heard the contents of the two letters from the Mining commissions. For that matter, PW5 is taken to be unreliable witness. 14 Further, the same PW5 went ahead contending that, he was told by the demolishers that, it is the defendant who had sent them to demolish their properties. Unfortunately, this witness was testifying a hearsay which is not admissible under our laws. On the same issue PW1 stated that, the defendant is over all Government offices, thus he sent Police Officers to damage and bury their properties. Unfortunately, this witness when cross examined as to whether he ever witnessed the defendant ordering those Government officials for such demolition, the witness denied to have seen. That means the witness was just testifying a prediction which is not admissible in our laws. To that much, my firm view is that, it is not the defendant who demolished and buried the plaintiffs’ properties at the said mining site, if at all the demolition happened. As such, this issue is also answered in negative. However, this conclusion marks death of the plaintiffs’ both special and general damages claimed because it is not the defendant who stopped the mining activities and destroyed the plaintiffs’ properties if any. On that account, he cannot be condemned to compensate the plaintiffs. 15 At this juncture, the only issue that remains is on reliefs that the parties are entitled to, which do not depend on the determination of issues number one and two above. It is for the Plaintiffs being reinstated to the mining site as they have so claimed. The evidence reveals that the plaintiffs are no longer going on with the mining activities at the site, then they pray to be returned to the site and continue with their mining activities. But the fact that the said premise is alleged to be unsafe and it has not been evidenced on the current safety status, this court hesitates to make an order for the Defendant to reinstate them. Not only that but there was also no evidential proof on the nature and kind of contract that the parties had. In upshot, I find the suit has not been proved at the required standard, hence dismissed. No order as to costs. S. M. Kulita JUDGE 31/12/2024 16 DATED at SHINYANGA this 31st day of December, 2024. S. M. Kulita JUDGE 31/12/2024 17