BULEMBO JUDGMENT for Tanzlii pdf

IN THE HIGH COURT OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CIVIL APPEAL NO. 15697 OF 2024 (Originating from the decision of the Minning Commission in Mining Dispute No. 09 of 2023) MUSTAPHA ISSA MAYALA ......................................................... APPELLANT VERSUS ABDALLAH MAJURA BULEMBO ................................................ RESPONDENT JUDGMENT Date of last Order: 30/07/2024 Date of Ruling: 13/08/2024 K. D. MHINA, J. Tanzania's mineral wealth is diverse and abundant, encompassing a wide range of resources. These include metallic minerals such as gold, iron, silver, copper, platinum, nickel and tin; gemstones such as diamonds, tanzanite, ruby, garnet, emerald, spinel, tourmaline, alexandrite and sapphire; industrial minerals such as kaolin, phosphate, lime, gypsum, diatomite, bentonite, vermiculite, salt and beach sands; building materials such as stone aggregates and sand; and energy minerals such as coal and uranium. According to the Tanzania Mining Commission found at https://www.tumemadini.go.tz/statistics/minerals-available-in-tanzania/, the presence of the above mineral deposits is due to the country’s favourable geological setting with lithostratigraphic and tectonic units. This setting includes significant units such as the Archaean Tanzania Craton, the Palaeoproterozoic Ubendian and Usagaran mobile belts, the Mesoproterozic Karagwe–Ankolean, the Neoproterozoic Mozambique belt, the Phanerozoic sediments of the Karoo, Coastal basin and Cenozoic volcanic rocks. Among the regions in Tanzania blessed with minerals is Geita, where gold, the precious metallic mineral, is also found. It is mined from artisanal and small-scale to large-scale mining. In order to regulate the mining activities in the country, the legislature enacted the Mining Act, Cap 123, as its legal framework. The recent version is the revised edition of 2019 [Hereinafter to be referred to as the Act] Therefore, this is an appeal from the decision of the Mining Commission filed under section 121 of the Act. It is an appeal following the appellant's dissatisfaction regarding the decision in Mining Dispute No. 09 of 2023, dated 28 May 2024. At the trial, the subject matter was the controversy over the Primary Mining Licence No. 001934WLZ and PML1031GTA for the same mining area located at Nyamtondo-Nyamalulu area within the Region of Geita. For the sake of pellucidity, I shall reproduce section 121 of the Act. It provides as follows: “Any person aggrieved by a decision or order of the Commission made or given pursuant to this Part may appeal to the High Court within the period of thirty days from the date on which the decision or order is given or made”. The brief facts which led to the institution of Dispute No.09 of 2023 before the Mining Commission were that the appellant (as the administrator of the late KHADIJA MRISHO) claimed that the deceased was the owner of the Mining Licence No. 001934WLZ dated 15 January 2016. After the death of the deceased and after the appellant was appointed as the administrator, on 17 December 2022, he submitted to the Commission an application to substitute the name in the mining licence from the name of the deceased and the licence be registered in his name as the administrator of the estate. He alleged that the application was not responded to. In March 2023, after the licence expired, he applied for the renewal. While waiting for renewal, he was informed that the respondent had been granted the mining licence for the same mining site. Therefore, at the Commission, he prayed for the renewal of mining licence No. 001934WLZ, the same to be registered in his name, and the cancellation of the mining licence granted to the respondent. On his side, the respondent alleged that he applied for the mining licence and was granted it on 21 July 2023. It was a mining licence number PML1031GTA. The above controversy over the mining licenses on the same land put the parties at odds, and both presented their evidence before the commission. In the end, the Commission decided the matter in favour of the respondent based on the following reasons; One, licence No. 001934WLZ, registered in the name of Khadija Mrisho, expired on 14 January 2023. Second, there was no evidence that the appellant applied for the renewal 90 days prior to the expiration of the licence No. 001934WLZ. Third, the appellant requested the renewal of licence No. 001934WLZ two months after its expiration. Fourth, it was proper for the respondent to be granted licence No. PML1031GTA, as at the time when he applied for the same, there was no valid licence over that land. Undaunted, the appellant appealed to this court and preferred the following grounds to fault the commission’s decision; 1. That the Learned trial Executive Secretary erred in law and facts by failing to consider that at the time for an application of an intention to apply for renewal of PML 001934 WLZ, which is three months before the expiration of the Primary Mining Licence as required by the Law the Administrator to administer the estate of the late KHADIJA MRISHO SWALEHE had not been appointed. 2. That the Learned trial Executive Secretary erred in law and facts by failing to consider that an application made by the Appellant to renew PML 001934 WLZ on March 2023 was filed within the time limit. 3. That the Learned trial Executive Secretary erred in law and facts by failing to consider the Appellant's application for registration of a transmission by operation of Law of the PML 001934 WLZ that was filed on the 16th Day of December 2022. 4. That the Learned trial Executive Secretary erred in law and facts by failing to consider that the parties' representative to the Mining Case No.: 09 of 2024 had no capacity to represent the parties thereat. 5. That the Learned trial Executive Secretary erred in law and facts by failing to consider that at the time the respondent filed an application for Registration of PML 1031GTA on the 13th Day of July 2023, there was a pending Application for Renewal of PML 001934 WLZ which the Appellant filed on March 2023. 6. That the Learned trial Executive Secretary erred in law and facts by failing to consider that the Mining Authority did not serve a notice to the appellant specifying grounds of default towards an application of renewal of PML 001934 WLZ that was filed on March 2023. 7. That the trial Executive Secretary erred in law and fact by entertaining and rendering the decision in Mining Case No. 09/2024 without taking into consideration that the respondent failed to prove her case to the required standard of proof in civil cases. 8. That the trial Executive Secretary erred in law and fact by rendering a decision that was at variance with or contrary to the evidence adduced by the Appellant in the said Mining Case No.09 of 2024. This appeal was argued by way of written submissions. Mr. Gaston Thomas, Advocate, represented the appellant, and the respondent had the service of Mr. Paul John Hombo, Advocate. In arguing the appeal, Mr. Thomas abandoned the 4th ground of appeal and proceeded with the remaining grounds. In supporting the appeal, he started by arguing the 1st and 3rd grounds jointly and together as follows; Following the death of Khadija Mrisho on 28 June 2022, the Administrator was appointed on 25 November 2022. On 16 December 2022, the appellant applied to register a transmission by operation of Law of six Primary Mining Licences, including PML001934WLZ, owned by the late Khadija Mrisho. Unfortunately, and for no justifiable reason, the registration of only PML001934WLZ was not done. He further argued that it is a requirement of the law for the owner of a Primary Mining Licence to apply for the intention to renew three months before the expiration of the licence as provided under Section 56(1) of The Mining Act, Cap 123 R.E 2019. Therefore, it is not mandatory since the word "may" have been used. Additionally, when the Administrator was appointed, he was already out of the required three months because the time to apply for an intention to renew was supposed to be on 15 October 2022, but the Administrator was appointed on 25 November 2022. Arguing the 2nd, 5th and 6th grounds, Mr. Thomas submitted that there was no dispute that the appellant applied for the renewal of PML001934 WLZ on March 2023. On the other hand, there was no dispute that the respondent applied for the registration of PML1031GTA on 13 July 2023. There was also no dispute that when the respondent applied for the registration of the PML1031GTA there was a pending application for renewal of the PML001934 WLZ. He cited Section 56 (3) of the Act, which provides that An application for renewal of the licence under this section may be refused if— (a) the applicant is in default; (b) the development of the mining area has not proceeded with due diligence; (c) minerals in workable quantities do not remain to be produced; (d) the applicant has failed to conduct mining operations in the mining area in strict compliance with the applicable Regulations relating to safety and environmental management; Provided that, the licensing authority shall not reject an application to renew a primary mining licence on the grounds that the holder is in default, without first serving on the holder a notice specifying particulars of the default and requiring the holder to remedy the default time specified in the notice. Then he explained that the cited provision contains the conditions upon which an application for renewal of Primary Mining Licence may be rejected if any of such conditions is not fulfilled. Also, the proviso provides that an application shall not be rejected without serving a notice to the applicant specifying grounds for rejection. Coming to the 7 and 8 grounds, Mr. Thomas submitted that the law in proving civil trial is on the balance of probabilities. To amplify the grounds of appeal, he submitted that since it was not in dispute that there was a pending application for renewal of PML001943 WLZ and no notice of default served to the appellant, the respondent was estopped by the law to apply for the Registration of PML1031GTA. He stated that, by looking at the commission's judgment, the appellant established that he applied for the renewal of PML001934 WLZ in March 2023. Thus, the Mining Authority had an obligation to work on the application made by the appellant, either reject it by serving notice of default to the appellant or effect the renewal. In response, Mr. Hombo submitted as follows. Responding to the 1st and 3rd grounds of appeal, Mr. Hombo submitted that at the trial before the commission, the fact that after the death of the late Khadija Mrisho on 28 June 2022, the appellant was appointed as her administrator on 25 November 2022. After that, on 16 December 2022, he applied for the renewal of licence no. PML001934WLZ was never reflected in the commission’s decision. Further, there was no evidence presented before the commission to that effect. He explained that the law is clear under section 56 (1) of the Act that the application for renewal of the licence should be within 90 days of the date of expiration of the licence. Further, he argued that the appellant’s failure made the land open for anyone to apply for the mining licence, and the respondent did so by applying for the licence, which he was granted. Regarding the 2nd, 5th, and 6th grounds of appeal, Mr. Hombo responded that the issue of notice specifying the grounds for rejection to the appellant was never raised at the trial. He further submitted that in the impugned decision, the commission held that there was no evidence that the appellant applied for the licence renewal. Therefore, the appellant failed to prove his case per sections 110 (1) and 110(2) of the Tanzania Evidence Act, Cap 6 R: E 2019. On the other hand, the respondent proved his case at the commission. Responding to the 7th and 8th grounds of appeal, Mr. Hombo submitted that on the balance of probabilities, the appellant's case was weak compared to the respondent’s. The respondent won the case after he presented his evidence and tendered the exhibits. Having objectively gone through the grounds of appeal, the submissions by both parties and the records of the trial commission, I find that grounds of appeal are intertwined in such that grounds 1, 2,3, 5 and 6 centred on the application and renewal of the primary mining licence. On the other hand, grounds no. 7 and 8 are based on evaluating evidence and balance in proving a case. In determining the first set of grounds of appeal on the application and renewal of the primary mining licence, I wish to predicate the grounds with an exposition on the process and procedures of application and renewal of the primary mining licences. The dispute of the licences between the parties falls under head DIVISION C of the Act. Under DIVISION C, the Act deals with the applications, grants, validity and renewal of the primary mining licences. The primary mining licence is applied under section 54 of the Act. The application may be granted under section 55 (1) OR refused under section 55(1) (a) and (b) of the same Act. The validity of the primary mining licence, as per the law, is seven (7) years. This is provided by section 55 (2) of the Act. The section reads; “A primary mining licence granted under this section shall be valid for a period of seven years and may be renewed under section 56”. The Act also explicitly provide for the time limit and process of renewing the licence. First, the law requires the application for renewal to be made not later than 90 days before the date of expiry of the licence. This is in accordance with section 56 (1) of the Act which reads that; “Not later than three months before the expiry date of the primary mining licence, the holder may apply to the Commission for renewal of the licence”. Thereafter, the application for renewal may be granted under section 56 (2) OR refused under section 56 (3) of the Act. But before refusal, the holder of the licence shall be served with a notice specifying particulars of the default and requiring the holder to remedy the default within the time specified in the notice. Flowing from above, I will start to deal with the 2nd, 5th and 6th grounds in which the appellant complained that one, his application for renewal of licence no. PML 001934WLZ made on March 2023 was within the time; two, the respondent’s registration for a licence no. PML 1031GTA on 13 July 2023 was granted while there was a pending application for renewal of the appellant’s licence no. PML 001934WLZ since March 2023, and third, the mining authority did not serve the appellant with the notice specifying grounds of default regarding the application for renewal of licence no. PML 001934WLZ. It was a common ground and there was no dispute that licence no. PML 001934WLZ was granted on 15 January 2016 for seven (7) years. Also, there was no dispute that the seven years expired on 14 January 2023. In his submission, Mr. Thomas submitted that though section 56(1) of the Act requires a holder of the licence to apply for renewal three months before the expiration of the licence but because the word used in that provision of law is “may”, therefore it was not a mandatory requirement. That is why, in the 2nd ground of appeal, they raised that by applying for renewal in March 2023, the appellant was within time. On this, going back to the provisions of law specifically sections 55 (2) and 56 (1) of the Act. That the validity of the primary mining licence is seven (7) years, and renewal of that licence is to be made not later than 90 days before the date of expiry of the licence. Therefore, these two provisions of the law must be construed to get the real intention of the law in terms of when the renewal can be applied. This is because it is a cardinal principle in the construction of the statute that its provisions must be read together to make any construction of a particular provision in order to fit into the purpose and object of the statute. Therefore, I shall proceed to construe section 56 (1) of the Act, which requires an application for renewal to be made no later than 90 days before the date of expiry of the licence. The section Mr. Thomas stated was not mandatory because of the word “may” used in the provision. In construing that provision of law, I find it necessary to read it together with section 55 (2) of the same Act, which states that the validity of the licence is seven years. Therefore, if the validity of the licence is seven (7) years and a holder fails to renew it before the expiration period of the said licence, that means the expiration of the time there will be no valid primary mining licence; therefore, the mining land/area /plot will be open for new applications. Thus, it is, for this reason, the submission by Mr. Thomas that the word “may” make section 56(1) of the Act to be not mandatorily is not of much help because section 56 (1) must be read and interpreted together within the context and the spirit of section 55 (2) of the same Act. For the elaborations above, since the licence expired on 14 January 2023 and the appellant applied for the renewal in March 2023, he was obviously out of time. His renewal application was already overtaken by events as there was a valid licence to renew. Therefore, the 2nd ground of appeal is devoid of merits and must fail. The 5th ground of appeal should not detain me long because the application for renewal by the appellant was filed on March 2023, while the licence has already expired since 14 January 2023. Therefore, technically, there was nothing to renew. My understanding of the Act and the spirit of the Act is that; one, renewal is supposed to be applied while the licence is still valid and two, after expiration of the licence and if there is no grant of renewal, the licence becomes invalid. It cannot be renewed unless a holder applies for a fresh mining licence. Therefore, at the time, the respondent applied for and was granted licence no. PML 1031GTA, licence no. PML 001934WLZ was no longer in existence; thus, the application for renewal was inconsequential. Therefore, nothing prevented the mining authorities from receiving new applications and granting primary mining licences for the land whose licence had already expired and not renewed according to the law. There was no known pending application for renewal. Therefore, the 5th ground of appeal lacks merits. Reverting to the 6th ground of appeal, also it should not detain me long. This is because, as per the law, section 56 (3) requires a licence holder whose application for renewal had been refused to be served with a notice specifying particulars of the default and requiring the holder to remedy the default within the time specified in the notice. However, the application for renewal must be made under section 56(1) of the Act. This is because section 56(3) provides that; “An application for renewal of the licence under this section may be refused if” [Emphasis provided] On the other hand, under the section, the application is made under section 56(1), which provides that; “Not later than three months before the expiry date of the primary mining licence, the holder may apply to the Commission for renewal of the licence”. Therefore, the notice is supposed to be served to the applicant whose application has been made under section 56 (1) of the Act and not otherwise. It follows, therefore, that in the circumstances of this case, Mr. Thomas's reliance on section 56 (3) of the Act is a fundamental flaw. This is because failure to receive a response for the renewal application filed out of time does not amount to failure to serve notice as if the application for renewal was filed within the stipulated time by the law. Thus, the 6th ground is devoid of merits, and it is dismissed. Coming back to the 1st ground of appeal, that; “That the Learned trial Executive Secretary erred in law and facts by failing to consider that at the time for an application of an intention to apply for renewal of PML 001934 WLZ, which is three months before the expiration of the Primary Mining Licence as required by the Law the Administrator to administer the estate of the late KHADIJA MRISHO SWALEHE had not been appointed. The records of the trial commission indicated that the appellant filed the Probate Cause No. 15 of 2022 at Katoro Primary Court within the District of Geita. He was appointed as the administrator on 11 December 2022. From above, I have the following One, the Act does not provide for the situation where the holder of the licence passed away before he /she renews the licence. Two, in such circumstances, the leeways are Probate laws. On this, unlike in the High Court or District Court, I am aware that the Primary Court (Administration Rule) 5th Schedule to the Magistrate Court Act, Cap 11 R: E 2019, does not have the provision to appoint an administrator “pendente lite”. But in order to safeguard the estate before the appointment, the appellant was supposed to apply before the Primary Court either to be appointed temporarily and pending finalization of the probate cause or any other order to allow him to apply for renewal of the licence according to the law. Therefore, since nothing was done until the licence expired, to raise such a complaint in the first ground of appeal is like blaming someone for your own mistake. Thus, the complaint in the first ground is an exception to section 56 (1) of the Act. Consequently, the ground is devoid of merits. Determining the 7th and 8th grounds of appeal, which are based on evaluating evidence and balance in proving a case, I have to reevaluate the evidence presented at the commission. See Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019, where it was held that; "... the first appellate Court it is entitled to re-evaluate the entire evidence on record reading it together and subjecting it to a critical scrutiny and if, warranted, arrive at its own decision." The record indicated as follows; the licence No. PML 001934WLZ expired on 14 January 2023, and there was no application to renew it before its expiration as directed by section 56(1) of the Act. Further, the respondent applied for a licence on the same land after the expiry of licence No. No. PML 001934WLZ, and he was granted licence no. PML1031GTA on 13 July 2023. Therefore, the appellant neither applied for renewal in accordance with the law nor applied afresh for the licence of the disputed area. From the above brief discussion, it is quite clear that the commission properly and reasonably evaluated the evidence and rightly held that licence no. PML1031GTA was rightly granted, and the expiration and failure to renew licence no. PML 001934WLZ. Thus, the 7th and 8th grounds lack merits. On the 3rd ground of appeal, which is the last one in the determination of this appeal, the appellant complained as follows; That the Learned trial Executive Secretary erred in law and facts by failing to consider the Appellant's application for registration of a transmission by operation of Law of the PML 001934 WLZ that was filed on the 16th Day of December 2022. The records indicated that after the appellant was appointed as the administrator of the estate of the late Khadija Mrisho on 16 December 2022, he applied for the replacement of the owner's name. The licence be changed from the name of the deceased to his name. That means the mining rights to be changed from the name of the deceased to the name of the appellant. That request or grant does not mean and include the renewal of the licence. The extent of the request and grant is to change the name of the owner, replacing the deceased with the name of the administrator. Therefore, I am inclined to agree with Mr. Thomas that the registration of the appellant's name by operation of law has the same effect as the renewal of the licence. What the counsel appears to have overlooked is the fact that the process of renewing the licence under section 56 (1) read together with section 55 (2) of the Act, is very clear and does not need to venture to other issues to seek resolution. Therefore, the 3rd ground of appeal is also devoid of merits. From the above discussion, in totality, the appeal lacks merits; both grounds of appeal fail to persuade this Court to interfere with the decision of the commission. Consequently, I dismiss the appeal with costs. It is so ordered. K. D. MHINA JUDGE 13/08/2024 Court The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 13/08/2024