MSETY PHILEMON VS NORTH MARA COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO.143 OF 2023 MSETY PHILEMON GOTORA (as the administrator of the estate of the late Philemon Gotora…………………………………..….1ST PLAINTIFF LOVENJULIANA PHILEMON GOTORA (as the administratrix of the estate of the late Philemon Gotora…………………..………………….2ND PLAINTIFF VERSUS NORTH MARA GOLD MINE LIMITED…………………………….………………..DEFENDANT RULING Date of last order: 13/11/2024 Date of Ruling: 28/02/2025 HON. GONZI, J. The plaintiff instituted this suit praying for judgment and decree of the Court against the defendant for several reliefs as follows; 1 a) Declaration that the Defendant has breached the Prospecting Licenses and Conditional Surrender of the Mineral Claim agreement for not paying the 1% royalty on all the minerals produced and processed in the former Plaintiffs’ transferred lands from 2002 to 2023; b) A declaration that conducting gold and associated minerals smelting, processing, and refining is part of the gold production process; c) A declaration that the Defendant is the one who drafted the Prospecting Licenses and Conditional Surrender of the Mineral Claim agreements in English language and the same was not translated into Kiswahili or Kikurya the languages that the Deceased understood and that any ambiguity in the said agreement is to be construed against the Defendant; d) A declaration that the Defendant has perpetrated fraud on the estate of the Deceased for using the transferred sites to undertake gold processing of 5,704,705.54 ounces of 2 gold from 2002 to 2023 and refused to disclose the said amount and value to the Plaintiffs amounting to US$ 101, 219,817.71 (One Hundred and One Million, Two Hundred Nineteen Thousand, Seven Hundred and Seventeen dollars and Seventy-One Cents; e) A declaration that the Defendant has unjustly and fraudulently enriched itself at the Plaintiffs’ expense for conducting gold production on his transferred land but failed to pay him 1% of royalty on the total value of the gold and associated minerals produced on that land; f) A declaration that the Defendant has not at any time disclosed the true and accurate price for which it was selling the gold and associated minerals for the proper calculation of the 1% royalty amount; g) An order that the Defendant pay US$ 101, 219,817.71 (One Hundred and One Million, Two Hundred Nineteen Thousand, Seven Hundred and Seventeen dollars and Seventy-One Cents as the 1% value of the gold and 3 associated minerals mined and produced in the Plaintiffs’ transferred lands from 2002-2023; h) An order for the Defendant to pay the due 1% royalty of all gold produced annually including gold processed by it in the Plaintiffs’ Deceased former claim areas from year 2002 to the time of the judgment date; i) An order to the Defendant to disclose the true and accurate quantity and value of the gold and associated minerals and the prices for which they were and are sold at quarterly to the Defendant as long as it continues to use the former plaintiffs’ claim areas for gold production including processing; j) In the alternative, but without prejudice to the foregoing, an order for the termination of the agreement due to the Defendant’s material breach to honor the said contract and the attendant order for the return of the said Plaintiffs’ former Mineral Claim Nos 41307, 41308, & 41333 in Nyangoto village Tarime district Mara to the 4 Plaintiffs, in their original state, within 30 days from the date of judgment; Still in the alternative, an order for the renegotiation of the agreement to make it a fairer agreement and beneficial to both sides; l) General damages at the Court’s discretion but not less than US$20 million; m) Compound interest on (g) and (h) above from the date of each failure and refusal to pay the due annual royalty 1% rate and amount to the payment date; n) Punitive damages; o) Interest at the Court’s rate on (g), (h), (l), (m), & (n) above from the date of judgment to the payment date; p) Costs for three advocates be provided for and; r) Any other order or relief. The Defendant refuted the claims advanced by the plaintiff in the Written Statement of Defence and raised a Preliminary point of objection in law that: a) To the extent that the claim emanates from alleged breach of contract, the claims for the period from 2002 to 15th 5 October 2017 are hopelessly time barred in terms of Item 7 to the Schedule of the Law of Limitation Act [CAP 89 R.E. 2019]. b) The Claims under prayer c is hopelessly time barred. c) The Claims under Prayer j is hopelessly time barred. d) To the extent that the 1st Plaintiff holding power of attorney for Philemon Gotora filed Civil Case No. 10 of 2022 in the High Court of Tanzania, Musoma Sub Registry at Musoma, in terms of Section 10 and Order II, rule 2 (2) and rule 2(3) (of the Civil Procedure Code (Cap 33 R.E. 2019) the Plaintiffs are precluded from suing the Defendant for alleged non-payment of royalty for the period from 2002 to 30th March, 2022 when Civil Case No. 10 of 2022 was filed. The Defendant prayed for dismissal of the suit with costs. The hearing of preliminary objections proceeded by way of written submissions. The Defendant was represented by Ms. Caroline Kivuyo, Learned Advocate. The plaintiff was represented by Dr. Rugemeleza Nshala, Mr. Nyaronyo Mwita Kicheere and Mr. Heri Louis Kayinga, Learned Advocates. I thank the Learned Counsel for their useful submissions. Ms. Kivuyo, Learned Advocate, submitted on the first, second and third preliminary objections collectively, that is to the extent that the claim emanates from the alleged breach of contract, the claims for the period from 6 2002 to 15th October 2017 are hopelessly time barred in terms of Item 7 to the Law of Limitation Act [CAP 89 R.E. 2019]; the claims under prayer (c) are hopelessly time barred and that the Claims under prayer (j) are hopelessly time barred. Ms. Kivuyo, Learned Counsel, submitted that it is the position of the law in items of item 7 Part 1 to the Schedule of the Limitation Act that “A suit founded on contract not otherwise specifically provided for- Six years.” Basing on the above provisions of the law, she submitted that the Plaintiff’s claims for the period before October 15, 2027 are time barred for being claimed out of the statutorily prescribed period of six (6) years from the time the claims are alleged to have arisen. She argued that in terms of section 3(1) of the Law of Limitation Act, that part of the claim, being out of time, should be dismissed as the Plaintiffs have in law waived their right to bring the suit. Ms. Caroline Kivuyo, Learned Advocate, referred the Court to the position taken by the Court of Appeal in the case of Moto Matiko Mabanga vs. Ophir Energy PLC, Civil Appeal No.119 of 2021 where it was held that: 7 “… the suit founded on contract was essentially time barred as it was instituted beyond six (6) years contrary to item 7 Part 1 to the First Schedule of the Law of Limitation Act…” Further, she relied on the case of M/S P & O International Ltd v. The Trustees of Tanzania National Parkes (TANAPA), Civil Appeal No. 265 of 2020 and John Cornel vs. Grevo (T), Civil case No. 70 of 1998 for a similar legal position. Ms. Kivuyo submitted that there is plethora of authorities to the effect that, limitation of time touches on the jurisdiction of the Court to determine the matter before it as it goes to the very root of the matter. She cited the case of Swilla Secondary School vs. Japhet Petro, Civil Appeal No.362 of 2019, where it was held that the Courts or tribunals are enjoined not to entertain any matter which is time barred. On the second and third preliminary objections, Ms. Kivuyo submitted that the prayers contained in paragraphs (c) and (j) are specifically contractual, whereas under paragraph (c) the Plaintiffs prays for a declaration that there is ambiguity in the contract executed with their deceased father thus a clear challenge of the validity of the said contract. 8 Under paragraph (j) of the prayers in the Amended Plaint, the Plaintiffs claim for restitution of the mineral claims by terminating the agreement for reasons of material breach. She submitted that the prayers clearly seek to challenge the validity of the contract/ agreement in question. The Learned Advocate for the Defendant submitted that the above named two prayers which seeks to attack the validity of the contract and which claim breach thereof, are hopelessly time barred to be determined by this Court. On the fourth preliminary objection, Ms. Kivuyo submitted that the Plaintiffs are precluded from suing the Defendant for the alleged non- payment of royalty for the period from 2002 to 30th March, 2022 when Civil Case No. 10 of 2022 was filed. She argued that as it can be comprehended from the Plaint and the decree of Consent settlement in Civil Case No. 10 of 2022, the 1st Plaintiff herein, holding Power of Attorney for Philemon Gotora, filed Civil Case No. 10 of 2022 against the Defendant herein claiming for, allegedly, unpaid royalties for the quarter ending on 30th September 2020 arising from the processed stockpiles mined from the claim areas numbers 41307, 41308 and 41333. 9 It was submitted that the said Civil Case No. 10 of 2022 was settled and a Consent Judgment was subsequently entered by the Court on 28/10/2022 closing the matter completely. Similarly, she argued, as it is apparent on the record by looking at paragraph 4 of the amended Plaint in this Commercial Case No. 143 of 2023, the Plaintiffs are claiming for unpaid royalties arising from the same mineral claim numbers 41307, 41308 and 41333. She argued that the only difference between the two cases is on the period for the alleged unpaid royalties. In Civil Case No. 10 of 2022, the 1st Plaintiff was claiming for the period of the quarter ending September 2020 but now, in Commercial Case No. 143 of 2023, the Plaintiffs are claiming for the whole period from 2002 to 2023. Ms. Kivuyo submitted that according to Order II rule 2(2) of the Civil Procedure Code, it is the position of the law that where the Plaintiff omits to sue on or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the omitted or relinquished portion. She quoted Rule 2(3) of the CPC that provides: “A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits any of the reliefs unless 10 there is a leave so to do he shall not afterwards sue for the omitted reliefs.” Ms. Kivuyo, Learned Advocate, submitted that the above position finds support in SARKAR ON THE CODE OF CIVIL PROCEDURE, 11th Edition Vol. 1 at page 92 which provides the conditions or the application of the bar against further suits under Order II Rule 2 of the CPC that: (i) The two suits must arise from the same cause of action; (ii) The cause of action in the second suit must have arisen at the time of filing the former suit; (iii) Both suits must be of the same parties and; (iv) The former suit must have been determined on the merit. Ms. Kivuyo, submitted that as established above, in both Civil Case No. 10 of 2022 and Commercial Case No. 143 of 2023, the cause of action is the claim for the unpaid royalty allegedly arising from the gold production and non-payment of royalty from mineral claims No. 41307, 41308 and 41333. She added that it is apparent that the claims which the Plaintiffs are seeking in the later suit had already arisen at the time when the former suit was filed in March 2022. Further that the parties in both suits are the same; and that 11 the former Civil Case No. 10 of 2022 was determined on merit by the Court by issuing a decree of settlement, thus all conditions for the bar of further suit are met. Ms. Kivuyo, submitted that in filing Civil Case No. 10 of 2022, the 1st Plaintiff was aware of the alleged non-payment of royalties for the period of 2002 to 2022 as stated at paragraph 6 of the Plaint in Civil case No.10 of 2022, that he was aware of the defendant’s commencement of production, instead he intentionally omitted to sue and or relinquished the said claims for the whole period and opted to seek the unpaid royalty for the quarter ending September, 2020 only. She submitted that now, taking cognizance of the fact that the suit was filed in March 2022, the Plaintiffs are thus legally barred from filing a fresh case including this Commercial Case No. 143 of 2023, having the same cause of action and seeking for the amount they intentionally omitted to seek at the time of filing Civil Case No. 10 of 2022. She submitted further that by suing in Civil Case No. 10 of 2022, the Plaintiff was aware of the existence of the 1995 agreement and thus ought to have understood the terms and conditions of the agreement which his deceased father, the donor of Power of Attorney, had agreed to. Accordingly, it was submitted that the 1st Plaintiff intentionally relinquished the relief of contra 12 preferentum rule or restitution when he was suing in Civil Case No. 10 of 2022. Hence, the Plaintiff is, in law, precluded to seek the same using this new suit. She referred the Court to the case of Mathias Rweyemamu v. General Manager, Kagera Cooperative Union (1990), Misc. Civil Application No. 52 of 2019, HCT at Bukoba, where the High Court cited the position by the same Court in Mathias Rweyemamu v. General Manager, Kagera Cooperative Union (1990), Civil Case No.2 of 2004 as quoted hereunder: “In our case the plaintiff did not seek leave of the Court, in any case the plaintiff was very much aware of the relief and yet he omitted to claim. In view of Rule 2(3) of Order II of the Civil Procedure Code, Cap. 33, he is barred from bringing a fresh suit.” Ms. Kivuyo, submitted that the Plaintiff chose to omit his alleged claims for non-payment of royalty for the period of 2002 to 2022 in Civil Case No.10 of 2022 which the Plaintiff is currently claiming herein contrary to the provisions of Order II rule 2 (2) and (3) of the Civil Procedure Code. Following his omission, he is legally not allowed to sue in respect of the portion of claims for non-payment of royalty for the period of 2002 to March 2022 when he filed Civil Case No. 10 of 2022. She urged the Court that proceeding to 13 entertain this suit will not only go against the referred Order II Rules 2(2) and 2(3) only, but the same will be against the general rule prohibiting further suit as provided under Section 10 of the Civil Procedure Code: “Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished”. Ms. Kivuyo referred the Court to the Indian case of Deepa Dua vs. Tejinder Kumar Muteneja, IA No.19136/2012 which is pari materia with Order II rule 2(2) of the Civil Procedure Code where Hon. Jayanta Nath, J., held that:- “In the view above, the present application is allowed. The suit is dismissed as barred under Order II Rule 2 CPC. All pending applications are also disposed of.” Ms. Kivuyo, submitted that Commercial Case No. 143 of 2023 contravenes the provisions of the law under Order II Rules 2(2) and 2(3) and 14 Section 10 of the Civil Procedure Code. She humbly prayed that the plaint be dismissed for contravening Section 10 and Order II, rule 2 (2) and Rule 2(3) of the Civil Procedure Code and Item 7 of part I of the Schedule to the Law of Limitation Act. In Reply Messrs Dr. Rugemeleza Nshala, Nyaronyo Mwita Kicheere and Heri Louis Kayinga, Learned Advocate, submitted that the first, second and third points of the Preliminary Objections are interwoven, and that the principle is that a Court of competent jurisdiction is barred from opening preliminary objections it had earlier on dismissed and the Court is therefore barred from opening the first, second and third points of preliminary objection, for it had dismissed them in the preliminary objections raised upon institution of the High Court Civil Case No. 41 of 2021, which was later on withdrawn. The Learned Counsel for the Plaintiff submitted that in paragraphs 16, 17 and 19 of the Amended Plaint, the Plaintiffs herein pleaded that upon institution of the High Court Civil Case No. 41 of 2021, which was withdrawn, the Defendant had raised a similar time limitation objection, but that the same was overruled by this Court. A copy of the said Court’s Ruling was attached to the Amended Plaint and marked as Annex PG-11. 15 The learned Counsel for the Plaintiff reproduced the relevant contents from pages 1 and 7 of the said ruling for the sake of clarity that: - (a) In so far, the Plaintiff alleges that his claim for outstanding royalty is from 2002 to 2020, that part of the alleged claim up to 8th March 2015 is time barred undersection 3 of the Law of Limitation Act [CAP 89 R.E. 2019] in terms of items 7 and 12 of Part I of the Schedule to the Act. In respect of that preliminary objection, the Court held that: “I will therefore avoid Counsel Waziri’s contention, as I concur with Counsel Nshalla’s based on both section 3 (1) of the Act read together with section 7 of the same Act. Hence the objection is misconceived and dismissed.” The Learned Counsel for the Plaintiff argued that the Defendant knew or ought to have known that having earlier dismissed the preliminary objection, the Court is now barred to open the same. They referred the Court to the decision by the Court of Appeal in the case of Legal and Human Rights Centre v. The Minister of Health, Community Development, Gender, Elderly and Children & AG, Civil Appeal No. 48 16 of 2020, where the Court of Appeal of Tanzania at Mbeya (unreported) at page 6 stated thus: “Having dismissed the first PO, it was not open for the Learned Judge to entertain another PO on the same competence of affidavit, because that was not keeping with the established trend since Mukisa Biscuits (supra).” On second and third preliminary objections, they submitted that it is a cardinal principle of law that a point of preliminary objection should only be confined to points of law nothing more and nothing less. They relied on the decision by the Court of Appeal of East Africa in the case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd., (1969) EA 696 at page 701, Sir Charles Newbold, P. said – “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. They further cited the decision of the Court of Appeal of Tanzania, in the case of Ali Shabani and 48 Others v. Tanzania Roads Agency 17 (TANROADS) & The Attorney General, Civil Appeal No. 261 of 2020 (Unreported) where it was held that: … no preliminary objection will be taken from abstracts without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence. The Learned Counsel for the Plaintiff submitted that the Defendant has embarked into analyzing the evidence in paragraph 3.1.8 of the Submissions that the prayers contained in paragraph c and j are specifically contractual, whereas under c the Plaintiffs pray for the declaration that there is ambiguity in the contract executed with the deceased father, thus a clear challenge of the validity of the said contract; under paragraph j of the prayers in amended plaint the Plaintiffs claim for restitution of the mineral claims by terminating the agreement for reasons of material breach, which prayer clearly seeks to challenge the validity of the contract/ agreement in question. On the fourth preliminary objection, it was submitted by the Learned Counsel for the Plaintiff that the Plaintiffs are totally in opposition to Defendant’s Counsel Submissions. They argued that it is worth noting that during pendency of the now withdrawn suit to wit:- Civil Case No. 41 of 18 2021, on 30th March 2022, the 1st Plaintiff whilst holding a Power of Attorney of the deceased together with 4 others, filed a joint suit against the Defendant numbered High Court Civil Case No. 10 of 2022 at Musoma Sub- Registry (hereinafter referred to as “Civil Case No. 10 of 2022”) exclusively concerning unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 plus interest that continue to accrue thereon at the rate of 12% (for US$) or 23% (for TZS) from the date due to the date of judgment. Subsequently, on the 28th day of October 2022, whilst the Civil Case No. 41 of 2021 was pending for determination, parties in the aforesaid Civil Case No. 10 of 2022 reached an amicable settlement exclusively for the cause of action relating to claims of unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 and nothing else. They submitted that the agreement did not touch the previous claims and did not amount to the Plaintiffs’ relinquishing their other claims against the Defendant. They submitted that Clause 3 of the said Decree Settlement is relevant to this point and went ahead to reproduce the same for the sake of clarity: “That upon payment of the above-mentioned sum, no further claim will be instituted against the 19 Defendant concerning payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint”. It was submitted that from the said Settlement Deed, it is only the royalty pertaining to the 3rd quarter of 2020 that was settled and nothing else. They added that the parties were categorical that other claims were not affected and thus it is quite disingenuous on the part of the Defendant’s Counsel to insinuate to the contrary. Further, it was submitted for the Plaintiffs that it is equally important to note that the Defendant never attached copies of proceedings, Decree on Settlement and pleadings in respect of Civil Case No. 10 of 2022 in her Written Statement of Defence. Instead of attaching the Decree on Settlement in her Written Statement of Defence, the Defendant attached the copy of the aforesaid Decree on Settlement in her submissions in support of the preliminary objection and invited this Court to take judicial notice of its existence being the document by the High Court of Tanzania at Musoma sub- Registry. The Learned Counsel for the Plaintiff, submitted that it is on record that pleadings in the present suit are based on the cause of action arising from 20 the unpaid royalty revenues of 1% amounting to US$ 101,219,817.71 in respect of deceased’s former mineral claims number 41307, 41308, and 41333 from 2002 to 2023 and hence the Defendant knew or ought to have known that in determination of preliminary objections, the Court needs only to look into the Amended Plaint and its annexures, it does not rely on the Defendant’s filed documents. The Learned Counsel for the Plaintiff cited a decision by the Court of Appeal of Tanzania in the case of Babito Limited v. Freight Africa NV- Belgium & 2 Others, Civil Appeal No. 355 of 2020, where the Court of Appeal of Tanzania at Moshi, at page 17 thereof held: “We thus find that the trial Court correctly relied on the plaint and its annexures in determining a preliminary point raised.” The Learned Counsel for the Plaintiff submitted further that the copy of Decree on Settlement in respect of Civil Case No. 10 of 2022 which the Defendant has invited this Honorable Court to take judicial notice of its existence, being a document by High Court of Tanzania, Musoma sub registry, is nothing more than a statement from the bar. They relied on the case of The Director of Public Prosecutions v. Barrick Enos Mwasaga, 21 Criminal Appeal No. 472 of 2019, Court of Appeal of Tanzania at Mwanza (unreported) where at pages 8 and 9 the Court of Appeal held: “The course taken by the first appellate Court to rely on this statement from the bar, we respectfully think, offended the ends of justice. As already stated above, the first appellate Court did not have enough material before it to justifiably hold that the petition of appeal was filed out of time. It was therefore an error to strike out the appeal before it…..For the avoidance of doubt, we do not think the document complained of fell under the scope of section 59 (1) (d) of the Evidence Act. The paragraph calls upon Courts to take judicial notice of "all seals of all the Courts of the United Republic duly established and of notaries public, and all seals which any person is authorised to use by any written law…It will be appreciated that this was not the case in the appeal before the High Court and is not the case in the appeal before us. The High Court did not take judicial notice of the document filed in another case and to our mind that course was properly taken.” It was argued that it is trite law that written submissions are not evidence. The Learned Counsel for the Plaintiff relied on the Registered 22 Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government and 4 Others, Civil Appeal No. 147 of 2007 (unreported). They submitted that the purported preliminary objections raised by the Defendant are untenable because preliminary objections are not raised when certain facts are to be ascertained or what is sought is exercise of judicial discretion. They submitted that this Court has not been furnished with sufficient facts, pleaded in the present suit, to determine whether the Plaintiffs are precluded from suing the Defendant for the alleged non- payment of royalty for the period from 2002 to 30th March 2022 when Civil Case No. 10 of 2022 was filed. They fortified their argument with the case of Abdullah Suleiman Richy (suing under the constituted Power of Attorney conferred to him by African Marble Company Limited) v. Selemani Menengali & 64 Others, Land Case No. 57 of 2022, at Dar es Salaam. They submitted that in paragraph 16 and 17 of the Amended Plaint, the 1st Plaintiff herein, pleaded that upon being appointed the Donee by his father Philemon Mang’era Gotora (deceased), the 1st Plaintiff carried out a meticulous review of all the documents he could gather relating to the rights 23 of the deceased under the agreement and he instituted the High Court Civil Case No. 41 of 2021 at Dar es Salaam District Registry in respect of similar causes of action to the present suit. Moreover, in August 2023, after obtaining more information pertaining to the production of gold by the Defendant, in 2023 the 1st Plaintiff decided to withdraw Civil Case No. 41 of 2021 in August 2023 and in the course of reviewing further the production data of the Defendant in the years 2002 to 2012, between August to September 2023, he also discovered more that fraud was perpetrated on the estate of the deceased by the Defendant through withholding of the data of the production and the value of the gold sold, leading to the withdrawal of that suit (with leave to refile a fresh suit). The Learned Counsel for the Plaintiff submitted that the Plaintiffs instituted the suit after knowing that the amount of gold that the Defendant was producing which was not known to them. They submitted that the time started running from that time and not otherwise. They prayed for the preliminary objection to be dismissed with costs. In her Rejoinder submissions, Ms. Kivuyo submitted that, they agree with the Plaintiff that the law bars re-opening a preliminary objection on the same case once it is determined. However, she argued, the said position 24 does not apply to the case at hand because there has never been any filed or determined preliminary objection in Commercial Case No. 143 of 2023 before this Court. She argued that Civil Case No. 41 of 2021 is quite a different case from this Commercial case No. 143 of 2023. Similarly, the said case did not involve similar parties, thus, although may be related, the two cases are different. She submitted that this fact is evidently clear under the Court Order withdrawing Civil case No. 41 of 2021 attached in the Amended Plaint as Annex PG-10 as well as the Ruling attached as Annex PG-11. She argued that the former case was filed against the defendant and another entity, Barrick Gold Limited, whereas this case is preferred against the defendant only. Following the withdrawal of Civil case No. 41 of 2021, that marked the end of the said case. There is nothing binding this Court from deciding otherwise considering the facts of this case. Further, Ms. Kivuyo submitted that it does not need to go into evidence in order to determine that prayer c and j of the Plaintiffs as pleaded in the amended plaint are contractual in nature and thus time limited within six years only. This fact is blatantly clear from the face of the amended Plaint lodged before this Court. She submitted that time limit, for the purposes of accrual of a cause of action, starts to run from the time when a party 25 becomes aware of the breach complained of. However, she argued, this is not the case in the case at hand because the Plaintiffs are suing in their capacity as legal representatives of their deceased father meaning they stepped into his shoes. There is nowhere that the Plaintiffs alleges awareness of the alleged breach by their deceased father who is the party to the contract and thus aware of the execution of the contract, the royalty payments made to him and any breach, if any. In this case, the exclusion by the Plaintiffs is their knowledge of the alleged breach and not that of their deceased father while they are suing on his behalf. Accordingly, the attempts to exclude time limitation are irrelevant. In relation to the 4th Preliminary Objection Ms. Kivuyo rejoined that although the Plaintiff’s prayer in respect of Civil case No. 10 of 2022 was exclusively for the quarter ending 30 September 2020, the same did not exempt the application of the provision of Rule 2(2) and (3) of Order II and Section 10 of the Civil Procedure Code. She further argued that attaching the settlement decree in their submission in chief is not fatal. The document being a decree of the Court is not evidence and thus it was attached for the Court to take its judicial notice only. That marked the end of the submissions by the Learned Counsel. 26 After the rival submission by both parties, I will start to determine the 1st, 2nd and 3rd preliminary objections raised. Learned Advocates’ for the Plaintiffs were of the view that the said objections of time limit were determined by competent Court in Civil Case No. 41 of 2021. However, that was disputed by the Ms. Kivuyo for the Defendant. The main issue for determination is whether the ruling in Civil Case No.41 of 2021 was between the same parties, same subject matter, same issues and tried by a Court with competent jurisdiction? I have looked at the record in Civil Case No.41 of 2021 and the parties are MSETY PHILEMON GOTORA (legal representative of Philemon Gotora) v North Mara Gold Mine limited & Barick Gold Limited. The parties in this case are MSETY PHILEMON GOTORA (as the administrator of the estate of the late Philemon Gotora and LOVENJULIANA PHILEMON GOTORA (as the administratrix of the estate of the late Philemon Gotora) v NORTH MARA GOLD MINE LIMITED. Therefore, it is clear that the parties superficially appear to be different but legally they are the same. In the present case the both MSETY PHILEMON GOTORA and LOVENJULIANA PHILEMON GOTORA are the administrator and administratix, respectively representing the late Philemon 27 Gotora, hence suing and claiming under the same title. In Civil Case No.41/2021 MSETY PHILEMON GOTORA was suing as the legal personal representative hence acting for and on behalf of the late Msety Philemon Gotora. In the present case both MSETY PHILEMON GOTORA and LOVENJULIANA PHILEMON GOTORA are jointly suing as the legal personal representatives hence acting for and on behalf of the same person namely the late Msety Philemon Gotora in whose shoes they stand claiming under the same title. The plaintiff in Civil Case No.41/2021 and in the present case is therefore the same namely the estate of the late Msety Philemon Gotora. On the side of the Defendants, in Civil Case No.41/2021 there were two Defendants while in the case at hand there is deficit of one party that is Barrick Gold Limited. However, North Mara Gold Mines Limited was also a party in the former case. Therefore, the Defendant herein was one of the defendants in the former case. Hence, the parties between the two cases are the same. With regard to the issue or the subject matter decided in Civil Case No. 41/2021 and the present suit being the same, it must be borne in mind that the Plaintiff claim that the same preliminary objection on the point of time limit was raised by the Defendant and dismissed by the Court in Civil Case 28 No. 41/2021and that the same preliminary objection on time limit has been raised herein once again. What preliminary objection was raised in Civil Case No. 41 of 2021? The Defendant had raised a time limitation objection that: (a) In so far, the Plaintiff alleges that his claim for outstanding royalty is from 2002 to 2020, that part of the alleged claim up to 8th March 2015 is time barred undersection 3 of the Law of Limitation Act [CAP 89 R.E. 2019] in terms of items 7 and 12 of Part I of the Schedule to the Act. The Ruling of the Court in respect of the said preliminary objection was that: “I will therefore avoid Counsel Waziri’s contention, as I concur with Counsel Nshalla’s based on both section 3 (1) of the Act read together with section 7 of the same Act. Hence the objection is misconceived and dismissed.” The above excerpt from Civil Case No.41/2021 between the Plaintiff and the Defendant herein shows that the same subject matter, namely period of limitation, was raised in the previous suit between the same parties. It was decided by the High Court of Tanzania at Dar es Salaam and hence of competent jurisdiction. A dismissal order rendered the subject matter (of an objection in respect of time limitation), res judicata. 29 In the case at hand the Defendant, has raised an essentially updated version of the same preliminary objection that: a) To the extent that the claim emanates from alleged breach of contract, the claims for the period from 2002 to 15th October 2017 are hopelessly time barred in terms of Item 7 to the Schedule of the Law of Limitation Act [CAP 89 R.E. 2019]. Once this Court, being a competent Court of jurisdiction, has already conclusively determined the same question of period of limitation between the same parties or parties claiming under the same title, then the same preliminary objection cannot be raised again by one of the same parties so as to be determined again by this Court in a subsequent suit between the same parties. I therefore accept the argument by the Learned Counsel for the Plaintiffs that the first preliminary objection is res judicata. I proceed to dismiss the same. Dismissal of the first preliminary objection also has a bearing to the second and third preliminary objections which are merely elongations of the first preliminary objection on time limit. The essence of the second preliminary objection on contractual rule of contra preferentum rule being invoked for breach of contract. In the third preliminary objection a claim was 30 being made for return of the former Mineral claims No. 41307, 41308 and 41333, Nyangoto Village Tarime for breach of the same contract which is the was the foundation for Civil Case No.41/2021 and is the foundation of the present case as well. Essentially the second and third Preliminary Objections are also that the claims stipulated therein are time barred under the Law of Limitation Act. Having already found that the first preliminary objection to be res judicata, I proceed to find also that the preliminary objections number 2 and 3 are also res judicata in tandem with the first preliminary objection of which they are corollary and incidental therefrom. At any rate, the Defendant, having earlier on in Civil Case No.41/2021 raised the general preliminary objection on time limit and which was dismissed, she would be debarred under Order II Rule 2(3) of the Civil Procedure Code to raise the specific objections which had accrued but were relinquished at the time the Defendant raised the general preliminary objection on time limit in Civil Case No.41/2021. I proceed to dismiss the second and the third preliminary objections too. Regarding the fourth Preliminary objection, the same is based on the doctrine of constructive res judicata. The Defendant alleged that the 1st Plaintiff holding power of attorney for Philemon Msety Gotora filed Civil Case 31 No. 10 of 2022 in the High Court of Tanzania, Musoma Sub Registry at Musoma, against the same defendant herein claiming for unpaid royalties for the quarter ending 30th September 2020 arising from the processed stockpiles mined from the claim areas numbers 41307, 41308 and 41333. The said case was settled amicably by the parties and a Consent Judgment was subsequently entered and a Consent and Decree issued by the Court on 28/10/2022, hence closing the matter completely. However, under paragraph 4 of the Amended Plaint in this Commercial Case No. 143 of 2023, the Plaintiffs are claiming for unpaid royalties arising from the same mineral claim numbers 41307, 41308 and 41333 but the only difference between the two cases is on the period for the alleged unpaid royalties. Whereas in civil case No. 10 of 2022 the 1st Plaintiff was claiming for the period of the quarter ending September 2020, in this Commercial Case No. 143 of 2023, the Plaintiffs are claiming for the whole period from 2002 to 2023. To quote the learned Counsel for the Plaintiffs in their reply submissions: “it is worth noting that during pendency of the now withdrawn suit to wit:- Civil Case No. 41 of 2021, on 30th March 2022, the 1st Plaintiff whilst holding a Power of Attorney of the deceased together with 4 others, filed a joint 32 suit against the Defendant numbered High Court Civil Case No. 10 of 2022 at Musoma Sub-Registry (hereinafter referred to as “Civil Case No. 10 of 2022”) exclusively concerning unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 plus interest that continue to accrue thereon at the rate of 12% (for US$) or 23% (for TZS) from the date due to the date of judgment. Subsequently, on the 28th day of October 2022, whilst the Civil Case No. 41 of 2021 was pending for determination, parties in the aforesaid Civil Case No. 10 of 2022 reached an amicable settlement exclusively for the cause of action relating to claims of unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 and nothing else…the agreement did not touch the previous claims and did not amount to the Plaintiffs’ relinquishing their other claims against the Defendant….Clause 3 of the said Decree Settlement is relevant to this point we reproduce the same for the sake of clarity: 33 “That upon payment of the above-mentioned sum, no further claim will be instituted against the Defendant concerning payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint”. From the said Settlement Deed, it is only the royalty pertaining to the 3rd quarter of 2020 that was settled and nothing else. The parties were categorical that other claims were not affected and thus it is quite disingenuous on the part of the Defendant’s Counsel to insinuate to the contrary.“ (underlining supplied) The pertinent question is whether in Civil Case No.10/2022, the “other claims” apart from the claims for “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022” , were part of the cause of action sued upon in the Civil Case No.10/2022? If the other claims were included, that is they were pleaded in Civil Case No.10/2022 but then the Settlement was only with respect to “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint”, it would follow that there was no full settlement reached in Civil Case No.10/2022 as the settlement would 34 have thereby only been related to a portion of the claims pleaded in the Civil Case No.10/2022. I became curious as to whether that was the case. I looked at the Settlement Decree in Civil Case No.10/2022 issued by the High Court of Tanzania, Musoma Sub-Registry on 28th October 2022. Under Clauses 5.1, 5.2 and 5.3 it was agreed by the parties and endorsed by the Court as Decree that: 5.1 In consideration for the payments and compensation set out in Clause 1 above, each Plaintiff mentioned herein above agrees that this Deed and the payment to be paid pursuant to it, are in full and final satisfaction of all possible suits, claims, liabilities and/or demands whatsoever which he or she now has or may have at any time in the future arising out of, or in connection with the agreements between the said Plaintiff and the Company for the 3rd quarter ending 30th September 2020 as stated at paragraph 3 of the Plaint. 5.2 The Plaintiffs release the defendant and all defendant's related or affiliated with it in respect of all suits, claims, liabilities and demands, including without limitation, all claims and liability arising directly or indirectly out the said agreements between the Plaintiffs and the Company for the 3rd quarter ending 30th 35 September 2020 as stated at paragraph 3 of the Plaint. 5.3 It is hereby agreed that the above-mentioned payments are full and final settlement of all claims and causes of action which the respective Plaintiff has and or may have against the Company howsoever arising for the 3rd quarter ending 30th September 2020 as stated at paragraph 3 of the Plaint. From the above contents of the Decree by Consent, it follows that there was a full settlement reached in Civil Case No.10/2022 in respect of all matters which were the subject of that case and the claims were for the 3rd quarter ending 30th September 2020 as stated at paragraph 3 of the Plaint. Other Claims apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint”, were not pleaded in Civil Case No.10/2022 nor determined in that case. Since the “other claims” apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint”, were not pleaded in Civil Case No.10/2022, then the relevant question is whether the said “other claims” apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022”, are the ones covered by the present case? If yes, 36 were the other claims related to the mineral claims rights Nos 41307, 41308, 41333 owned by the first plaintiff and whether the said claims had accrued at the time the Plaintiff filed Civil Case No.10/2022 on 23rd March 2022? I find as a fact that the other claims apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022”, are indeed the subject matter of the present case and the same arise from the very mineral claims rights Nos 41307, 41308, 41333 owned by the first plaintiff. Also, I find that the said claims had accrued at the time the Plaintiff filed Civil Case No.10/2022 on 23rd March 2022. It follows the that the other claims apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022” are debarred under Order II Rule 2(2) and (3) of the Civil Procedure Code, since they ought to have been brought as part and parcel of the claims for payment of royalty for the 3rd quarter ending 30th September, 2020, in Civil Case No.10/2022. If the other claims apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022, had not accrued at the time the Plaintiff filed Civil Case No.10/2022 on 23rd March 2022, then the other claims apart from “payment of royalty for the 3rd 37 quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022 ” would not have been debarred under Order II Rule 2(2) and (3) of the Civil Procedure Code, since they could not have been brought as part and parcel of the claims for payment of royalty for the 3rd quarter ending 30th September, 2020, in Civil Case No.10/2022. I have gone through the Consent Decree in Civil Case No. 10 of 2022 between Msety Philemon Gotora(legal representative of Philemon Gotora) & 4 others vs North Mara Gold Mine Limited determined by the High Court of United Republic of Tanzania, Musoma Registry, at Musoma. There were five Plaintiff therein with the Plaintiff herein being the first Plaintiff. The plaintiffs are described as being holders and beneficial owners of precious mineral claims rights Nos 41307, 41308, 41333 (owned by the first plaintiff), 41297, 41298, 42299 (owned by the 2nd Plaintiff), 41324 (owned by the 3rd Plaintiff), 41306 (owned by 4th Plaintiff) and 41323 (owned by the 5th Plaintiff). The plaintiffs are shown to have claimed against the Defendant herein for payment of USD 648,727.00 equivalent to One Shillings Billion Four Hundred Ninety-One Million Seventy-Three Thousand Twenty one (1,491,073,021/=) being the unpaid royalties for processes stockpiles of 34381 ounces for the quarter ending 2020 and interest that had continued 38 to accrue there on. The matter was settled by deed of settlement where the 1st Plaintiff (the Plaintiff’s herein) in that case was awarded a total amount of USD 500,000. The Consent Judgment in Civil Case No.10/2022, before stipulating the terms of the settlement thereby being adopted as a decree of the Court, firstly reproduced the claims of the Plaintiff and his 4 fellow Plaintiffs in that case. From it, we come to know what exactly was being claimed in Civil Case No.10/2022. It is patently clear therefore that the other claims apart from “payment of royalty for the 3rd quarter ending 30th September, 2020 as stated at paragraph 3 of the Plaint in Civil Case No.10/2022”, and which are the claims constituting the present case, were not included therein. The present case, according to the Consent Decree relates to claims for the Defendant to pay the Plaintiff US$ 101,219,817.71 as the 1% value of the gold and associated minerals mined and produced in the Plaintiff’s transferred lands from 2002-2023. It is a suit for breach of the Prospecting Licenses and Conditional Surrender of the Mineral Claim Nos. 41307, 41308 and 41333. Its foundation is breach of agreement by the Defendant for not paying the 1% agreed royalty on all the minerals produced and processed in the former Plaintiffs’ transferred lands from 2002 to 2023. These Claims had already accrued by 23rd March 2022 at the time the Plaintiff 39 filed Civil Case No.10/2022 against the same Defendant in respect of the same agreement. However, they were not included in Civil Case No.10/2022. If they had been included in Civil Case No.10/2022 which has already been finally determined, they would have been res judicata. For not being included in Civil Case No.10/2022 arising from the same cause of action, it makes them debarred under Order II Rule 2(3) of the Civil Procedure Code. The question I ask myself is whether a person who becomes vexed with several claims and reliefs arising from the same transaction can be allowed to bring his claims as bits and pieces in different suits against the same other party? My answer is in the negative. Courts abhor multiplicity of proceedings. Public interest requires that litigation should come to an end. The practice of suing separately for different claims or reliefs arising from the same cause of action is prohibited by Order II Rule 2(3) read together with section 10 of the Civil Procedure Code, CAP 33 (R.E 2019). It is a practice barred under the doctrine of constructive res judicata. In Akber Merali Alibhai v. Fidahussein and Comp. Ltd and others (1969) H.C.D. 270, an earlier suit between the same parties was dismissed in the defendant’s favour on a preliminary point raised that as the plaintiff was a partner he could not sue his co-partners as debtors until such 40 time as the partnership had been dissolved and accounts taken. The plaintiff then instituted a new suit seeking, inter alia, a declaration that the partnership he had entered into with the defendants be dissolved. The defendants argued that as the new claim could have been raised in the earlier proceedings even as an alternative, the claim for dissolution of the partnership was barred by the Civil Procedure Code, as being res judicata. In sustaining the objection, Duffus, J., had the following to say: “The Indian authorities relied on by Mr. Lakha support the contention that where a previous suit is dismissed a subsequent suit on the same cause of action is not maintainable. They also indicate that parties to litigation are required to bring forward their whole case and are not permitted, except under special circumstances, to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest (in the earlier case) but which was not brought forward through negligence, inadvertence or even accident vide Henderson v. Henderson, 67 E.R. 313 at P. 319). With these principles I respectfully agree.” (Underlining supplied) The above is still the position of the law in Tanzania as reflected under Order II Rule 2(3) of the Civil Procedure Code. I find that the Plaintiffs, as 41 parties to litigation in Civil Case No.10/2022 filed on 23rd March 2022 against the same Defendant herein, were required to bring forward their whole case based on breach of the Prospecting Licenses and Conditional Surrender of the Mineral Claim Nos. 41307, 41308 and 41333 by the Defendant for not paying the Plaintiffs the 1% agreed royalty on all the minerals produced and processed in the former Plaintiffs’ transferred lands from 2002 to 2023.The Plaintiffs, having relinquished that right, are not permitted now to re-open the same subject of litigation by filing the present claims arising from the same subject matter which might have been brought forward as part of the subject in contest in Civil Case No.10/2022 filed on 23rd March 2022, but which was not brought forward through negligence, inadvertence or accident. It follows therefore that the claims based on breach of the Prospecting Licenses and Conditional Surrender of the Mineral Claim Nos. 41307, 41308 and 41333 by the Defendant for not paying the Plaintiff the 1% agreed royalty on all the minerals produced and processed in the former Plaintiffs’ transferred lands from 2002 to 2023 which had accrued by 23rd March 2022 when Civil Case No.10/2022 was being filed are liable for dismissal in terms of Order II Rule (2)and (3) read together with section 10 of the Civil 42 Procedure Code and I do hereby proceed to dismiss the same with costs. For avoidance of doubt, only those claims which had arisen after 23rd March 2022 when Civil Case No.10/2022 was instituted, would not be caught by the bar under Order II Rule 2(3) of the Civil Procedure Code. The suit at hand has not specifically pleaded any such discernible claims which might have arisen after 23rd March 2022. I must, at this juncture, revisit the argument by Dr. Nshala, Mr. Kicheere and Mr. Kayinga, Learned Counsel for the Plaintiff who submitted convincingly that the 1st Plaintiff whilst holding a Power of Attorney of the deceased together with 4 others, filed a joint suit against the Defendant numbered High Court Civil Case No. 10 of 2022 at Musoma Sub-Registry exclusively concerning unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 plus interest that continue to accrue thereon at the rate of 12% (for US$) or 23% (for TZS) from the date due to the date of judgment. And that subsequently, on the 28th day of October 2022, parties in the aforesaid Civil Case No. 10 of 2022 reached an amicable settlement exclusively for the cause of action relating to claims of unpaid royalties for processed stockpiles of 34,381 ounces for the quarter ending 30th September 2020 and nothing else as settlement 43 agreement did not touch the previous claims and did not amount to the Plaintiffs’ relinquishing their other claims against the Defendant. The essence of these submissions and arguments was to alienate and isolate the other claims of the Plaintiff against the Defendant, from the ambit of the decision in Civil Case No. 10 of 2022 thereby salvaging the same from being rendered res judicata. In a way, the Learned Counsel were also trying to beat the law of limitation by arguing that the present Plaintiffs had not included the other claims in the previously filed suits because they had not yet become aware of the entitlement by the plaintiffs to the other claims. In my view, the Administrators of estate of the deceased person stand in the same footing like the deceased whose estate they administer, in relation to the law of limitation. Their late discovery of the truth does not entail late discovery of the truth by the deceased person against whom time had started to run. Time is reckoned with reference to the deceased person whom they stand in his shoes, as the administrators of his estate. Being successors in title, the administrators of estate do not have an independent cause of action separate and distinct from the one held by the deceased person. The urge by the Learned Counsel for the Plaintiff in this case to isolate the other claims from the claims in Civil Case No.10/2022, had another legal impact and 44 implication, however. By pushing away the other claims of the Plaintiffs from the ambit of the Plaintiff’s claims in Civil Case No. 10 of 2022, the Learned Counsel thereby pushed the “other claims” which constitute the present suit also, deep into the sphere of Order II Rule 2(2) and (3) of the Civil Procedure Code thereby making them debarred under it. It is not the inclusion of the “other claims” into the ambit of Civil Case No.10 of 2022 that makes them debarred under Order II Rule 2 (3) of the Civil Procedure Code, rather it is their exclusion and isolation from the ambit of Civil Case No. 10 of 2022 which debars the “other claims” sued upon in this case, since the “other claims”, having already accrued at the time of the plaintiff’s filing Civil Case No. 10 of 2022; and having arisen from the same cause of action as the claims sued upon in Civil Case No. 10 of 2022, ought to have been included as part and parcel of the claims forming the subject of Civil Case No. 10 of 2022. I reproduce Order II Rule 2(1), (2) and (3) of the Civil Procedure Code for ease of reference: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any 45 portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. In fine, the fourth preliminary objection holds water. The same is hereby sustained. I concur with Ms. Caroline Kivuyo, Learned Advocate for the Defendant that the Plaint in this suit is contrary to the provisions of Order II Rule 2(2) and (3) of the Civil Procedure Code Cap 33 R:E 2019. In terms of section 10 of the Civil Procedure Code, where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. Since the Plaintiff is precluded by Order II Rule 2(2) and (3) of the Civil Procedure Code from instituting the present suit in this Court, the same is hereby dismissed with costs. 46 Therefore, I find no merits in the 1st, 2nd and 3rd Preliminary Objections which are hereby dismissed. On the other hand, I find merit in the 4th Preliminary objection which is hereby sustained. I dismiss the suit with costs. It is so ordered. A. H. GONZI JUDGE 28/02/2025 Ruling is delivered in Court virtually this 28th day of February, 2025 in the presence of Mr. John Chogoro, Advocate for the Plaintiff and Ms. Caroline Kivuyo, Advocate for the Defendant. A. H. GONZI JUDGE 28/02/2025 47