Ruling Kibo Manjale and Six Others vs Tanzos Mining

Page 1 of 12 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND CASE NO. 3718 OF 2024 1. KIBO MWANJALE MKAMBA 2. EMMANUEL ERNEST KALWIZE 3. RODA LUCAS SINGHI 4. PAULINA ERNEST KALWIZE …..…………PLAINTIFFS 5. KULWA DANSTAN LUKANYA 6. FELICIAN KADASHI 7. YUSUPH ABDULAHAMAN VERSUS TANZOZ MINERALS COMPANY LIMITED …………………..DEFENDANT RULING Date of last Order: 16/08/2024 Date of Ruling:23/08/2024 MWAKAPEJE, J.: The plaintiffs instituted the present suit against the defendant, claiming the following orders, namely: i. Declaration that the defendant has breached the underlying procedure for appropriation of the plaintiff’s land for investment. ii. Declaration that the compensation offered by the defendant is unfair and inadequate. Page 2 of 12 iii. Permanent injunction to restrain the defendant from seizing the plaintiff’s land pending adherence to the lawful underlined procedures, including the execution of negotiation between parties regarding appropriation of the plaintiff’s land and payment of fair and adequate compensation. iv. Costs of the suit. Upon being served with the plaint, the defendant filed a written statement of defence disputing the plaintiffs’ claims as baseless. Consequently, the defendant prayed for a declaration order that the Defendant was legally granted Mining Licence, No. 538/2015 and its extension on the entire area subject to the said licence; the defendant has complied with payment of fair market value compensation to the Plaintiffs for their parcels of land, properties falling within the licence area and other related payments; the Plaintiffs’ suit be dismissed with costs; Order for the plaintiffs to stop unlawful mining on the suit land subject of Mining Licence No. LM 538/2015 and its extension and give vacant possession to the defendant on same and any other reliefs this honourable Court may deem just and fit to grant in the circumstances. Before proceeding further, it is essential to outline the key facts that have led to the initiation of this legal action. At some point in 2021, the Page 3 of 12 defendant, a mining license holder, submitted a successful application to the Chato District Council for the extension of the mining site beyond its original location in Imwelo Village. Following approval by the Chato District Council, the expansion encompassed portions of land belonging to the plaintiffs. The Chato District Council commenced the acquisition process on 25/10/2021, which entailed conducting a comprehensive valuation of the parcels of land designated for allocation to the defendant for expansion to compensate the landowners. A total of 68 individuals were identified as being affected by the proposed expansion. The valuation process was smoothly carried out, involving the measurement of each landowner's plot and the assessment of other items eligible for compensation. Subsequent to the completion of the valuation process, a detailed report was made available to all landowners, informing them of the compensation they were entitled to receive for the portion of land to be acquired. Upon realising the amount allocated to them, the plaintiffs refused to accept the sum, deeming it insufficient compared to what they would have rightfully received as adequate compensation. Despite their efforts to challenge the compensation amount for acquiring their land by visiting various offices, including the District Commissioner’s Office and the PCCB, Page 4 of 12 their endeavours proved futile. Consequently, they resorted to seeking redress in this court. The dispute was initially referred to a mediator for resolution through mediation; however, this endeavour proved fruitless, thus necessitating the hearing of the case. Both parties were represented, with Mr. Lutufyo Mvumbagu and Mr. Wilbard Kilenzi, learned advocates, appearing for the plaintiffs and defendant, respectively. During the Final Pre-trial Conference, the following issues were proposed by the court and mutually agreed upon by the learned advocates between parties and recorded for the determination of this suit, to wit: 1. Whether the procedures for acquiring Plaintiffs’ parcels of land were fully complied with. 2. Whether the plaintiffs were fairly compensated for their acquired parcels of land. 3. What are the reliefs the parties are entitled to? After the conclusion of the defence’s case, the learned advocates for the parties prayed to submit their final submission, a prayer which this court granted. Both advocates complied with the submission order. However, following a meticulous review of the pleadings, evidence, counsels' submissions, and all the documents presented, prior to proceeding with the determination of the case and considering the intricate relationship between Page 5 of 12 the surface rights holders and the mineral rights holder in this matter, I invited the parties to address the court on the issue of whether this court possesses the jurisdiction to adjudicate on the matter. Mr Mvumbagu contended that this court holds jurisdiction over the matter since it is a land dispute. He was of the opinion that the Land Acts provide for the framework of settling land disputes, and any aggrieved person is entitled to seek recourse through the appropriate forum with original jurisdiction, including the Village Land Council, Ward Tribunal, District Land and Housing Tribunal and the High Court. He was of the stance that the framework under the Mining Act does not possess authority in land dispute cases. To bolster his argument, he referred to the case of Penina Mhere Wangwe & 31 Others vs. North Mara Gold Mine Limited (Land Case 19 of 2022) [2024] TZHC 7149 (9 August 2024). Mr. Kilenzi, on the other hand, was brief in his submission. Initially, he concurred with Mr Mvumbagu's submission. But later, after he reviewed the provisions of the Mining Act, he changed his mind and was of the view that this suit was prematurely brought before this court as it had no original jurisdiction over the matter. Page 6 of 12 Having considered the parties' submission, I wish to commence with the issues raised herein in addressing this matter. The first pertains to whether the procedures in the acquisition process of the plaintiffs’ land were duly followed. To delve into this matter, it is essential to consider that the present lawsuit involves the interests of landholders holding surface rights and mineral rights holders. To adequately address these two interests, it is imperative to consider the relevant and applicable laws, which, in the circumstances, are the Village Land Act and the Mining Act. Before digging into the applicable laws, I wish to point out at the outset that, based on the evidence presented in this case, there is no dispute regarding the ownership of the land over which the defendant was granted and later extended mineral rights. The land in question was held under customary rights by 68 villagers. Out of these, 61 accepted compensation and vacated the land, allowing the mineral rights holder to utilise it per the terms of the licence. However, the seven plaintiffs in this suit refused to accept the compensation, arguing that it was unfair and not issued promptly. While the acquisition of their land was raised as an issue in this case, none of the plaintiffs contested the same. Instead, their contention centred on dissatisfaction with the compensation offered, which they deemed inadequate. Page 7 of 12 In light of the foregoing, I now turn to the pertinent legal provisions governing this matter. Section 3(1)(h) of the Village Land Act, Cap 114 R.E. 2019, reinforces the core principles established by the National Land Policy. Notably, these principles require, among other things, the payment of full, fair, and prompt compensation to any person whose right of occupancy is revoked, interfered with by the state, or acquired under the Land Acquisition Act. Importantly, the Village Land Act extends this protection to customary rights of occupancy, granting them the same status as granted rights of occupancy. Consequently, such rights are entitled to just and equitable compensation when taken for other uses. Section 18(1) of the said Act reads as follows: “18(1) A customary right of occupancy is in every respect of equal status and effect to a granted right of occupancy and shall, subject to the provision of this Act, be - (i) liable, subject to the prompt payment of full and fair compensation, to acquisition by the State for public purposes in accordance with any law making provision for that action. [Emphasis supplied]. While I concur with Mr. Mvumbagu's assertion regarding this court's jurisdiction over land disputes in relation to Part XIII and Part V of the Land Act, Cap. 113 and Village Land Act, Cap 114, respectively, and that the framework under the Mining Act does not deal with resolution of land Page 8 of 12 disputes; it is, however, to note that pursuant to section 18(1)(i) of the Village Land Act, when other interests affecting the land's usage come into play, the applicable legislation is that which governs the actions involving the said land. In the present case, “the law making provision for the act” should, with no doubt, be the Mining Act. Therefore, given that the respondent has secured mining rights in accordance with the Mining Act, as demonstrated by the Mining Licence, No. 538/2015, the procedures for addressing entitlements of surface land rights holders should conform to those delineated in the Mining Act. With this elucidation, I welcome further scrutiny of the Mining Act concerning issues pertaining to mining rights and surface rights holders, especially in instances where one has secured mining rights. Section 95(1) stipulates that prior consent must be procured from surface landholders before commencing mining operations. See the case of Hosea Katampa vs Ministry of Energy & Minerals & Others (Civil Appeal No. 221 of 2017) [2018] TZCA 225 (3 October 2018). The said section provides: "95 (1)-The holder of a mineral right shall not exercise any of his rights under his licence or under this Act— (e) in respect of any land within any city, municipality, registered villages, or demarcated settlement, except with written consent of holders of surface rights and of the responsible Minister or the Page 9 of 12 authority having control over the city, municipality, township, registered villages, or demarcated settlements. "[Emphasis supplied]. Therefore, pursuant to this Act, the holder of surface rights must grant consent for the holder of mining rights to exercise their privileges as stipulated in their license. Moreover, section 96(1) mandates that mining rights must be executed judiciously to prevent any detrimental impact on the interests of the landowner or occupant. Additionally, subsections (3) and (4) of section 96 require the mining rights holder to provide compensation to the surface rights holder in cases where disturbances arise due to mining activities. In the event of a disputed compensation, resolution is sought through the Mining Commission. The same read: “96(3) Where, in the course of prospecting or mining operations, any disturbance of the rights of the lawful occupier of any land or damage to any crops, trees, buildings, stock or works thereon is caused, the registered holder of the mineral right by virtue of which the operations are carried on, is liable to pay the lawful occupier fair and reasonable compensation in respect of the disturbance or damage according to the respective rights or interest of the lawful occupier in the property concerned. (4) Where the amount of compensation to be paid pursuant to subsection (3) in any particular case is in dispute, either party may refer the matter to the Commission who shall, subject to section 119, deal with the matter in accordance with Part XI.” [Emphasis supplied]. Page 10 of 12 To me, the disturbance stipulated in section 96(3), which may be imposed on the lawful surface rights holders over the land and which may necessitate compensation under the Mining Act, encompasses relocation and resettlement according to section 97, which mandates compliance with the Village Land Act in determining equitable and just compensation. Given the circumstances of the present case, it is essential to note that out of the 68 individuals whose land parcels were affected by the defendant's mining rights, 61 have already received compensation and have been relocated. The remaining seven individuals are the present plaintiffs. In light of this, it is prudent to underline that adherence to the procedures outlined in sections 95, 96, 97, 119, and 120 of the Mining Act would have been appropriate. These sections are designed to resolve disputes between surface and mining rights holders. Specifically, section 119 mandates that such disputes be dealt with by the Mining Commission to properly ascertain the rights of the parties involved. The said section provides: “119(1) The Commission may inquire into and decide all disputes between persons engaged in prospecting or mining operations, either among themselves or in relation to themselves and third parties other than the Government not so engaged, in connection with— (a) ……………N/A……………………………; (b) ………….N/A…………………..; Page 11 of 12 (c) the assessment and payment of compensation pursuant to this Act; or (d)any other matter which may be prescribed. (2) The Commission may make any order which may be necessary for the purpose of giving effect to the decision in proceedings pursuant to this Part and may order the payment, by any party to a dispute, of such compensation as may be reasonable, to any other party to the dispute.” [Emphasis supplied] In this case, the plaintiffs may be considered third parties, with some asserting their status as small-scale miners operating on their plots, while others seek to partner with the defendant and acquire shares in its mining operation. The Mining Commission is uniquely positioned to address these issues, given its mandate and specialised expertise in resolving mining disputes like the present case. Utilising the Commission as the primary forum to resolve the dispute herein is crucial for fostering harmony between surface land rights holders and mining rights holders. Consequently, parties are strongly encouraged to exhaust the remedies available through the Mining Commission before resorting to the courts of law. That being said, given that courts are established by statutes, parties cannot confer upon the court a jurisdiction it does not possess, as elucidated in the case of Shyam Thanki & Others vs New Palace Hotel [1971]1EA 199. Consequently, I agree with Mr. Kilenzi's assertion that this lawsuit has Page 12 of 12 been prematurely brought before this court, as it lacks the original jurisdiction to adjudicate it. Therefore, I opt to strike it out for want of jurisdiction. In the circumstances of this case, bearing in mind that it is the court that raised a point of law, I make no order as to costs. It is so ordered. DATED at GEITA this 23rd day of August 2024. G.V. MWAKAPEJE JUDGE This ruling is delivered this 23rd day of August 2024 in the presence of the 1st, 2nd, 3rd, 5th, 6th and 7th Plaintiffs and Ms Rose Bartazar Ngero, advocate holding the brief of Mr Wilbard Kilenzi, advocate for the Defendant. G.V. MWAKAPEJE JUDGE