SIGNED RULING 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: 29/08/2024 Date of Ruling: 18/10/2024 HON. GONZI, J. The plaintiff instituted the suit against the defendant praying for judgment and decree of the Court for the following orders: 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. 1 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 5,704705.54 ounces of 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; 2 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 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 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. k) General damages at the Court’s discretion but not less than US$20 million. 3 l) 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. m) Punitive damages, n) Interest at the Court’s rate on (g), (h), (l), (m), &(n) above from the date of judgment to the payment date. o) Costs for three advocates be provided for and; p) 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 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 4 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. On 6th June 2024 the Court directed the hearing of the preliminary objection be conducted by way of written submissions. The Defendant filed her written submissions on 20th June, 2024 whereas on 4th July 2024, the Plaintiff replied to the written submissions. On 11th July 2024, the Defendant rejoined to the reply submissions made by the Plaintiff and, additionally, raised a preliminary objection that: 1) The Plaintiffs reply submissions is contrary to the provisions of Rule 66(2) of the commercial rules which requires all documents including the submissions to be filed in Court not to exceed 10 pages of length. However, the submissions lodge herein are in excess of 10 pages as they are 16 pages. Since the Preliminary Objection was raised during the rejoinder stage of submissions, the Parties appeared before the Court on 29/08/2024 and the plaintiff sought leave of the court to file additional Reply submissions to address the newly raised objection in the rejoinder. Leave was granted and, therefore, the Court halted the determination of the main preliminary objections pertaining to the suit and, instead, gave room for both parties to be heard on the newly raised objection on the reply written submissions of the Plaintiff exceeding the prescribed maximum page limit. The Defendant was represented by Ms Caroline Kivuyo, Learned Advocate who submitted that the Reply submissions by the Plaintiff have contravened the 5 requirements of Rule 66(2) of the Commercial Court Rules. She submitted that the consequences of the Plaintiff’s failure to adhere to the mandatory requirement as per Rule 19(3) of the Commercial Court Rules is rejection of the said document during filing and/or expunging the same from the Court’s record subsequently. Ms Kivuyo, Learned Advocate, made reference to the case of KCB Bank Tanzania Limited vs Sunlon General Building Constructors Ltd & Others (Commercial Case 73 of 2013) 2016 TZHCComD 2024 (18 February 2016) in which at page 6, she argued, a similar preliminary objection was upheld by the Court when the filed document contained a total of 39 pages instead of a maximum of 10 pages. She submitted that excess on the number of maximum pages of the filed document was regarded as a violation of rule 66 (2) read together with rule 19 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012 (as amended in 2019). The plaintiffs were represented by Dr. Rugemeleza Nshala, Mr. Nyaronyo Mwita Kicheere and Mr. Heri Louis Kayinga, Learned Advocates. Together, they submitted that the position relied upon by the Defendant’s Counsel in the case of KCB Bank Tanzania Limited (supra) is distinguishable as it is a decision that was not permeated nor infused by the principle of overriding objective. They submitted that at the time the Commercial Court Rules did not contain the principle of overriding objective. The trio Learned Counsel contended that currently the High Court (Commercial Division) Procedure (Amendment) Rules, 2019 under rule 4 6 make cognizance of sections 3A and 3B of the Civil Procedure Code which intend to give statutory effect to Article 107 (2)(e) of the Constitution of the United Republic of Tanzania which insists on dispensation of substantive justice instead of the court being tied up with legal technicalities. The Learned Counsel for the Plaintiff, submitted that under the principle of overriding objective, minor transgressions such as those on exceeding the maximum limit of the pages of the documents filed, do not merit the heavy and stiff penalty of expunging the entire offending documents like party’s submissions. The Plaintiff’s Learned Counsel further submitted that, in its entire submissions, the Defendant’s Counsel did not show any prejudice caused to the Defendant by the Plaintiffs’ exceeding the prescribed maximum number of pages of the reply submissions. They argued that there is no debilitating effect on the defendant like failing to rejoin to the Plaintiffs’ Reply submissions. They argued that the Defendant knew or ought to have known that irregularities or non-compliance with procedural rules which do not go to the root or substance of the matter are to be overlooked by the Court. To cement this argument the Plaintiff’s Learned Counsel referred to the decision of the Court of Appeal in the case of Magambazi Mines Company Limited vs Kidee Mining T. Limited [2022] TZCA 46 at page 16 In brief rejoinder, the Learned Advocate for the Defendant was of the opinion that the principle of overriding objective seeks to enhance dispensation of substantive justice, however, it does not apply in the circumstances of this matter and is not a panacea of every ailment for non- 7 compliance with procedural law. She cemented her argument with reference to Court of Appeal decision in CRDB Bank Limited vs Finn W Petersen and others at page 15. After going through the submissions by both parties, the Court is of the view that in accordance with rule 66 (2) of the Commercial Court Rules, the parties are required to file court documents in conformity with rule 19 of the same rules. Rule 19 provides for the format of pleadings where it requires the pleadings to be in paragraph, “Times New Roman” font type, twelve font size, 1.5 line spacing and not more than 10 pages. Undoubtedly the Plaintiff filed a written submissions of 16 pages in violation of rule 66 and 19 of the Commercial Court Rules. The Plaintiffs’ Counsel conceded to their non-compliance with the procedural requirements but pleaded with the court not to expunge or strike out their Reply submissions. The critical question for determination at this juncture, therefore, is regarding the appropriate remedy for the failure by the Plaintiff to comply with prescribed procedural requirements, under rules 66 and sub rule 2 of rule 19 of the Commercial Court Rules. Under the said rules, the remedy available against the offending documents is for the Court to reject the documents in question. This, in my view, was to be done initially at the stage of filing of the particular document, in this case being the reply written submission filed by the Plaintiff. In the case of GG REFINERY LIMITED vs RO WATER SA (PTY) LIMITED [2024] TZHCcomD 191 (TANZLII) this Court explained the implication of rule 66(2) and 19(2) of the Commercial Court rules as 8 amended. The Court held that the defect is not fatal and there is a room for rectification. I subscribe to this stance in the interest of substantive justice. Under Article 107 A (2) ( e ) of the Constitution of the United Republic of Tanzania 1977, the Courts should not be unduly tied with legal technicalities in dispensation of justice. This is also the implication of the overriding objective principle under section 3A and 3B of the Civil Procedure Code [Cap.33 RE 2019] which was incorporated by Rule 4 of the High Court (Commercial Division) Procedure (Amendment) Rules, 2019. As this court held in GG REFINERY LIMITED vs RO WATER SA (PTY) LIMITED (supra) that a suit cannot be struck out merely because of the part exceeding the number of pages in the filed document and instead the Court may order for rectification of the pleadings, I also hold that the reply written submissions of the Plaintiff which exceeded the maximum page limit can be rectified rather than being expunged. Having said so, it follows that in essence the Preliminary objection raised by the Defendant’s Counsel is hereby upheld with costs as it is not resisted by the Plaintiffs’ Counsel. However, the remedy of expunging the same is not granted. Instead the Court makes the following orders: 1. The Plaintiff is directed to rectify their Reply written submission and file before this Honourable Court the Amended Written Submissions in accordance with the rules within 7 days from the date of this Order. The Amended Reply Submissions should be served upon the other side within 24 hours of their being filed. 2. The Defendant is granted 7 days from the date of being served with the Amended Reply Submissions to file the Amended Rejoinder 9 Submissions, if any, and serve the same upon the other side within 2 days. 3. The objection raised by the Defendant on violation of page limit by the Plaintiff is upheld with costs which shall be in the suit and shall taxed. It is so ordered. A. H. GONZI JUDGE 18/10/2024 Ruling is delivered in Court this 18th day of October, 2024 in the presence of Mr. Heri Kayinga accompanied by Mr. John Chogoro Advocates for the Plaintiff and Mr. Mnazi Isaac Mnazi, Advocate for the Defendant. A. H. GONZI JUDGE 18/10/2024 10