MR JOSEPHATI MNIKO MWITA 0001 240606 130317

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MWARIJA. J.A.. MWAMPASHI. 3.A And MURUKE. J.A.^ CIVIL APPEAL NO. 109 OF 2021 MR. JOSEPHAT MUNIKO MWITA (Appealing Under the Constituted Special Power of Attorney Conferred to him by MR. MWITA MAKINDYA and MRS. MWITA ANTHONY WAMBURA.................................................. APPELLANT VERSUS NORTH MARA GOLD MINE LIMITED......................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Mwanza] f Fikirini. 3.) dated the 06th day of June, 2020 in Commercial Case No. 09 of 2019 RULING OF THE COURT 31st May & 6thJune, 2024 MWAMPASHI. 3.A.: This appeal is against part of the judgment and decree of the High Court of Tanzania, Commercial Division, at Mwanza (the trial court), dated 06.06.2020, in Commercial Case No. 09 of 2019. In the said suit before the trial court, which was instituted by the appellant against the respondent, the judgment was entered in favour of the appellant who was awarded a total sum of USD 200,000.00 as compensation and general damages. The trial court also awarded the appellant interest at court rate of 7% from the date of judgment to the date of full payment of the decretal amount as well as the costs of the suit. Dissatisfied with the amount awarded, the appellant has preferred the instant appeal before the Court. i Briefly, the appellant's suit against the respondent was based on the contract executed by the parties on 05.06.1999. According to that contract, the appellant, as an original holder and beneficiary (Claim owner) of the mining right with Claim Title No. 41493 over the land situated at Nyamongo within the District of Tarime (Claim area), on the consideration of USD. 2,000.00, agreed and granted to Afrika Mashariki Gold Mines Limited, the respondent's predecessor, the sole and exclusive rights to use the land, that is, the Claim area, for, among other things, disposing, stacking or dumping any mineral or waste products. Clause 2.2.1 of the contract prohibited the respondent from using its rights under the contract to conduct any surface mining over the Claim area. Further, under Clause 2.2.2(1) of the contract, the parties agreed that in case the respondent commences underground mining operations on any part of the Claim area, the Claim owner, will be entitled to a revenue royalty calculated at 1% of all gold produced from that part of the land. The parties did also agree under Clause 4.3 of the contract that the Claim owner shall continue to carry on his existing mining activities on the Claim area. Regarding the dispute between the parties, according to the plaint, it was claimed by the appellant that, in breach of the contract, the respondent had commenced mining operation on the Claim area since 2011 but it has failed to pay the appellant his entitlement of revenue royalties at 1% of the gold produced from the Claim area as agreed under the contract. It was further claimed by the appellant that, as of 30.06.2016, the respondent had extracted substantial amount of gold from the Claim area and that according to the report made by the respondent to Tanzania Extractive Industries Transparency Initiative (TEITI), the amount of gold 2 extracted from the Claim area over the period of 5 years from 2012 to 2016 and its value, entitled the appellant to a total sum of USD 19,540,405.00 being the agreed 1% revenue royalties. The appellant thus sued the respondent praying for: 1. An order for payment o f USD 19,540,405.00 being his entitlement royalties up to 30.06.2016. 2. An order compelling the respondent to pay the appellant the sum o f revenue royalties o f 1% o f the value o f gold produced up to the years 2017, 2018, 2019 and years to come up to the closure o f the mine. 3. Interests at court rate from the date o fjudgment and decree to the date o f finalpayment o f the amount claimed. 4. General damages for the breach o f contract 5. Costs. In their written statement of defence, the respondent did not deny the existence of the contract between the parties but denied to have breached it. The respondent maintained that according to the terms of the contract, the 1% revenue royalties would be payable only upon the commencement, by the respondent, of underground mining operations on any part of the Claim area. It was also stated by the respondent that, no mining operations had been commenced on any part of the Claim area but that, the Claim area was being used only for stockpiling low-grade ore from other operations within Nyabirama Pit and further that the report made to TEITI by the respondent was in relation to other different Claim areas within the Nyabirama Pit. The respondent thus, prayed for the dismissal of the suit with costs. In its judgment, the High Court, having considered the evidence on record, found, among other things, that the respondent was in breach of the contract and that the appellant was entitled to the claimed revenue royalties. It however, found that as the appellant had no sufficient information and data to substantiate the claim of USD 19,540,405.00 which, in nature, was a claim for special damages and as there was thus, no figure on which the claim of 1% revenue royalties could be pegged, the claim for USD. 19,540,405.00, had not been proved. As we have alluded to above, the High Court thus, awarded the appellant USD. 100,000.00 as compensation for loss of expected income and another USD. 100,000.00 as general damages making a total sum of USD. 200,000.00 as decretal amount with interest at court rate of 7% from the date of the judgment to the date of full payment of the awarded amount. The appellant was also awarded the costs of the suit. As we have alluded to earlier, part of the High Court decision and in particular, the amount awarded and the finding that the claim of USD. 19,540,405.00 had not been proved, aggrieved the appellant hence, the instant appeal. It is also worth mentioning here that, in terms of rule 94 of the Tanzania Court of Appeal Rules, 2009 (the rules), on its part, the respondent has filed a cross appeal against the whole of the High Court judgment and decree. When the appeal was called on for hearing before us, the appellant had the services of Dr. Rugemeleza A.K. Nshala, Messrs. Nyaronyo Mwita Kichere and Heri Kayinga, all learned advocates. On the other hand, Mr. Faustin Malongo and Ms. Caroline Lucas Kivuyo, both learned advocates, represented the respondent. Before the hearing of the appeal could commence, based on rule 36 of the Rules, Dr. Nshala sought leave to make an application for additional evidence to be taken. The prayer by Dr. Nshala was also made in pursuance of the directive made by the Court on 01.03.2024 in Civil Application No. 636/08 of 2022 between the parties. In that application, wherein the appellant sought leave for additional evidence to be taken, the Court, having found that it was not seized with the record of the instant appeal, desisted from entertaining the appellant's application and instead it advised the appellant to orally make such an application before the Court seized with the record of appeal. In support of the application, Dr. Nshala argued that, the additional evidence sought by the appellant to be taken is in the form of a document and relates to information and gold production data for the year 2013 to 2021 that were tendered by the respondent in another case of similar nature, that is, Commercial Case No. 03 of 2020 between the respondent herein and Isaack & Sons Company Limited. He submitted that according to the plaint, the appellant had claimed for USD. 19,540,405.00 being the total amount he was entitled to as 1% revenue royalties. However, in its judgment, the High Court, found that the amount claimed had not been proved. The failure to prove the claimed amount, Dr. Nshala, argued, was a result of the fact that the appellant had no relevant information and data, that is, the actual amount and value of gold extracted from the Claim area for the relevant period of time, because the respondent had been concealing such relevant data and information, to the detriment of the appellant. He insisted that now that the said relevant information and data are available from Commercial Case No. 03 of 2020, the appellant should be allowed to produce the same as additional evidence to enable the Court determine the grounds of appeal fairly and justly. 5 It was further argued and insisted by Dr. Nshala that, the additional evidence sought to be taken could not be produced during the trial by the appellant. He pointed out that, under the contract entered between the parties which was imbalanced, the appellant had no means of getting hold of the relevant data and information or knowing the amount of gold produced and its value. He also referred us to pages 385 to 399 of the record of appeal where, in its judgment, the High Court encountered some difficulties and struggled to determine and ascertain, from the available evidence, the amount of gold produced and its value, but all in vain, because there was no such relevant data on which the appellant's entitlement of 1% revenue royalties could be calculated and based. Dr. Nchala concluded by arguing that the three conditions justifying reception of additional evidence as stated by the Court in a number of cases including the case of Phoenix of Tanzania Assurance Company Limited and Another v. Panache Limited, Civil Appeal No. I l l of 2020 (unreported), have been fulfilled by the appellant. In support of the application, reliance was also placed by Dr. Nshala on the following decisions of the Court: Mohamed Enterprises Tanzania Ltd v. Mussa Shabani Chekechea, Civil Appeal No. 51 of 2018, Kariakoo Auction Mart v. Mashaka Dyanga & 7 Others, Civil Appeal No. 234 of 2019, African Barrick Gold PLC v. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 144 of 2018, Idrisa R. Hayeshi v. Emmanuel Elinami Makundi, Civil Pllication No. 113/08 of 2020, Philemon Vanai Saiteru Mollel v. William Titus Mollel (Suing as an Administrator of the Estate of the Late Titus Aron Mollel) & Another, Civil Application No. 372/02 of 2022 and Trade Union 6 Congress of Tanzania (TUCTA) v. Engineering Systems Consultants Ltd & 2 Others, Civil Appeal No. 51 of 2016 (All unreported). Mr. Malongo opposed the application arguing that the application is baseless because the documentary evidence sought to be produced as additional evidence is irrelevant to the case at hand. He further contended that the said evidence relates to gold extracted from other Claim areas within Nyabirama Pit and not from the appellant's Claim area. It was also pointed out by Mr. Malongo that the decision in which such evidence was tendered and received in evidence, that is, the decision in Isaack & Sons Company Limited (supra), is subject to Civil Appeal No. 478 of 2022 pending before this Court and further that in the said case, underground mining was proved which is not the case in the instant matter. It was further submitted by Mr. Malongo that the appellant should not be allowed to produce the intended additional evidence because no underground mining operations had been commenced by the respondent within the Claim area entitling the appellant to 1% revenue royalties. He also argued that the High Court erred in finding that the appellant is entitled to 1% revenue royalties and that, it is for that reason that, the respondent has filed the cross appeal challenging the whole decision of the High Court. Mr. Malongo went on arguing that the claim of USD. 19,540,405.00 by the appellant was based on the respondent's report made to TEITT which was however not tendered in evidence. He thus, contended that since, in the first place, there was no evidence to prove the claim, there cannot be additional evidence to prove the same. It was also insisted by him that allowing additional evidence to be 7 taken and as prayed by the appellant is tantamount to allowing the appellant to patch up his weak case. Mr. Malongo thus, prayed for the application to be refused because the appellant has failed to meet the three conditions which are required to be accumulatively fulfilled to justify reception of additional evidence. He placed reliance upon the decision of the Court in Idrisa R. Hayeshi (supra). In his brief rejoinder, Dr. Nshala reiterated his argument that underground mining was proved and that, as rightly found by the High Court, the appellant is entitled to 1% revenue royalties. He further argued that the appellant had no means of knowing the amount of gold extracted from the Claim area and its value. Finally, Dr. Nshala submitted that the intended additional evidence will be an addition to and will supplement the evidence given by PW2 and PW3. In consideration of the arguments made by the learned advocates for the parties, the only issue for our determination is simply whether there are sufficient reasons to justify reception of additional evidence as sought by the appellant. The Court derives its powers to take additional evidence or direct for the same to be taken by the trial court from rule 36 (1) (b) of the Rules under which it is provided that: "36. - (1) On any appeal from a decision o f the High Court or Tribunal acting in the exercise o f its original jurisdiction; the Court may- (a) N/A 8 (b) in its discretion, for sufficient reasons, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner. [Emphasis added] As it can be observed from the above reproduced provisions of the law, powers of the Court to take additional evidence or direct such evidence to be taken by the trial court, are discretional. Such discretion has to be exercised judiciously. Further, for the Court to exercise its discretion under rule 36 (1) (b) of the Rules and allow additional evidence to be taken, sufficient reasons must be shown. As to what constitutes sufficient reasons for purposes of rule 36 (1) (b) of the Rules, the Court, in the case of Bhoke Kitang'ita v. Makuru Mahemba, Civil Appeal No. 222 of 2017 (unreported) relied on what was stated by the erstwhile East African Court of Appeal in the case of Karmali Tarmohamed and Another v. IH Lakhani & Co. (3) [1958] E.A. 567 that: "To justify the reception o f fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given would probably have an important influence on the result o f a case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible 9 Further, according to SARKAR LAW OF EVIDENCE, 16th Ed. 2007 at page 2512, reception of additional evidence is justified upon the following occasion: "The legitimate occasion for admission o f additional evidence is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, and not where discovery is made outside the court, o f the fresh evidence and the application is made to import it .. The rule is not intended to allow a litigant who has been unsuccessful in the lower court, to patch up the weakparts o f his case and fill up omissions in the court o f appeal". In determining whether sufficient reasons have been shown in the instant case, our focus will thus, be on finding whether the appellant has fulfilled the three requisite conditions for reception of additional evidence namely; One, whether the intended additional evidence could not have been obtained with reasonable diligence for use at the trial, two, whether the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive and three, whether the evidence is such as is presumably to be believed, or in other words, whether it is apparently credible, though it need not be incontrovertible. Beginning with the first condition, as it can be gathered from the record, the appellant claimed that he was not in position to know the amount of gold extracted from the Claim area or its value. Under the circumstances of this case, relevant information and data regarding the amount of gold produced and its value was not in the appellant's domain but the respondent. Due to the lack of such information and data, the claim by the appellant for USD. 19,540,405.00 as 1% revenue royalties 10 was found unproved as there was no relevant data on which to peg the claimed accrued revenue royalties. It is also on record that, the trial of the case between the parties was completed on 04.08.2020 and the judgment delivered on 06.10.2020. Further, the information and data regarding the gold production and its value which is sought to be produced as additional evidence, was filed by the respondent in Commercial Case No. 03 of 2020 on 09.06.2022 which was after the case between the parties had been tried and finally determined. The said information and data were thus, not in the appellant's domain and could not, by then, be obtained by the appellant. The first condition is thus, found fulfilled. As on the second condition regarding to whether the additional evidence would probably have an important influence on the result of the case, though it need not be decisive, it goes without saying that, under the circumstances of this case where the appellant's claim was declined because of lack of such evidence, the intended additional evidence is very likely to have an important influence in the determination of grounds of appeal raised by the appellant particularly to ground 2 which is to the effect that the High Court erred in rejecting the special damage claimed by way of accrued revenue royalties up to 30th June, 2016. We thus, find that the second condition justifying reception of the intended additional evidence has been met. Regardless of the fact that there is a pending appeal against the High Court decision in Commercial Case No. 03 of 2020, it is still our finding that the fact that the information and data intended to be produced as additional evidence by the appellants, were admitted and applied by the High Court in the said decision, then, for purposes of the instant application, the said evidence is presumably believable. li We find that the intended additional evidence is apparently credible, though it might not be incontrovertible. The third condition is thus, also fulfilled. In the same vein, we find the arguments by Mr. Malongo that the application should be refused because of the pending appeal against the decision in Commercial Case No. 03 of 2020 and also because of the presence of the cross appeal, not tenable. Even if the appeal against the decision in Commercial Case No. 03 of 2020 is allowed and the decision is reversed, the fact that the intended additional evidence is now available, will not change. It should also be pointed out that all what the appellant seeks, for now, is leave for additional evidence to be taken so that the said information and data are produced and received in evidence. This does not mean that, if the application is granted, the said information and data will be wholistically received in evidence and applied without being tested on its admissibility, reliability and weight to be attached to it. The intended additional evidence will be subjected to relevant procedure and scrutiny when it is being tendered and after it is admitted in evidence. Under the circumstances of this case and for the reasons we have endeavoured to discuss above, we also find the argument by Mr. Malongo that allowing the appellant to produce the relevant additional evidence is tantamount to allowing him to fill up gaps and patch up his weak case, misplaced. The appellant has managed to show sufficient reasons within rule 36 (1) (b) of the Rules. In the event and for the above given reasons, we find merit in the application and grant it accordingly. In terms of rule 36 (1) (b) of the Rules, we direct the trial court to take and certify to the Court, additional evidence in respect of information 12 and data regarding the amount of gold produced and its value from Nyabirama Pit as tendered by the respondent in Commercial Case No. 03 of 2020. In the meantime, in terms of rule 38A (1) of the Rules, the hearing of appeal is adjourned to another convenient sessions of the Court as it will be fixed by the Registrar after the intended additional evidence has been taken and certified to the Court by the trial court. Costs to abide the outcome of the appeal. DATED at MUSOMA this 5th day of June, 2024. A. G. MWARD A JUSTICE OF APPEAL A. M. MWAPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 6th day of June, 2024 in the presence of Mr. Herry Kayinga, learned counsel for the appellant through Video link from Court of Appeal Dar es Salaam and Mr. Faustine Malongo, learned counsel for the Respondent through Video link form High Court Mwanza, is hereby certified as a true copy of the original. IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA CIVIL APPEAL NO. 109 OF 2021 MR. JOSEPHAT MUNIKO MWITA (Appealing Under the Constituted Special Power of Attorney Conferred to him by MR. MWITA MAKINDYA and MRS. MWITA ANTHONY WAMBURA............................................. APPELLANT VERSUS NORTH MARA GOLD MINE LIMITED RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Mwanza] (Fikirini, J.^ dated the 06th day of June, 2020 in Commercial Case No. 09 of 2019 ORDER In Court this 6th day of June, 2024 Before: The Honourable Mr Justice, A. G. Mwarija, Justice of Appeal The Honourable Mr. Justice, A. M. Mwampashi, Justice of Appeal And The Honourable Madame. Justice, Z. G. Muruke, Justice of Appeal THIS APPEAL coming on for hearing this 31st day of May, 2024 in the presence of Mr. Rugemeleza A.K. Nshala assisted by Mr. Nyaronyo Mwita Kichere and Heri Kayinga, learned counsels for the Appellant and Mr. Faustine Malongo assisted by Ms. Caroline Lucas Kivuyo learned counsels, for the respondent AND UPON HEARING, the parties when the appeal stood over for Ruling and this appeal coming for Ruling this day; IT IS ORDERED THAT; the application has merit and it is granted in terms of rule 36 (1) (b) of the Rules. The trial court is directed to take and certify to the court, additional evidence in respect of information and data regarding the amount of gold produced and its value from Nyabirama Pit as tendered by the respondent in Commercial Case No. 3 of 2020. IT IS FURTHER ORDERED THAT; in terms of rule 38A (1) of the Rules, the hearing of appeal is adjourned to another convenient session of the Court be fixed by the Registrar. Cost to be abide the outcome of the appeal. f^ ^ D A TED at MUSOMA this 6th ' " 2024. g r DEPUTY REGISTRAR COURT OF APPEAL Extracted on 6th day of June, 2024.