PENINA VS NORTH MARA

THE UNITED REPUBLIC OF TAZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY)

AT MUSOMA LAND CASE No. 19 OF 2022 1. PENINA MHERE WANGWE 2. MARKO CHACHA GICHERE 3. HELENI DANIEL MATAIGA \ 4. EMMANUEL AUGUSTINO WANGWE \ 5. ALEXANDER CHACHA NYANKAIRA 6. NYANGIGE NYAMARUNGU MWITA 7. JOHN MENYE MWITA 8. JASTINE MWITA KIMUNYE 9. MATIKO BISENDO MARWA 10. DAUDI JUMA NYANKAIRA 11. ESTER DAUDI NYANKAIRA 12. MAKENGE DANIEL MAKENGE 13. MATONGO JUMA NYANKAIRA 14. KOROSO SASI RAGITA \ 15. ALLY MUYUI CHACHA \ 16. MATAIGA SAMMY DANIEL \ 17. ROBIN MOTENGI MARWA ........................... PLAINTIFFS 18. BHOKE PETER CHACHA f 19. AGNES PAULO CHACHA / 20. MWITA CHACHA MUYUNI / 21. OTAIGO CHACHA MHIRI 22. BEATRICE DANIEL BWANA 23. MARIA JUMA MASEYA 24. SIMON MSETTI WANGWE 25. ROBI CHACHA MHIRI 26. MWITA CHACHA KEGOYE 27. DANIEL ELIYA MATIKO 28. PETER MNIKO MWERA 29. WINFRIDA SAMUEL MOTENGI 30. SAMWEL MOTENGI MARWA / 31. NICODEMAS KITUNKA JOHN / 32. GEORGE NYAMOHONO NYAMONGE J Versus NORTH MARA GOLD MINE LIMITED.................................................. DEFENDANT

RULING 25.04.2024 & 13.05.2024 Mtulya, X: Mr. Daud Mahemba, learned counsel for the plaintiffs appeared in this court on 4th September 2024 praying for access of original 1 valuation report of Ntarechagini Hamlet within Komarera Village in Nyamwaga Ward of Tarime District, Mara Region in order to peruse the contents of all plaintiffs in the instant case. The prayer was not protested by Mr. Renatus Lubango Shiduki, learned counsel for the defendant. However, on 3rd May 2023 before the prayer of Mr. Mahemba was registered and granted by this court, Dr. Chacha Murungu, learned counsel for the plaintiffs had already appeared and prayed to tender in the case witness statements of all plaintiffs in order to easy proceedings during hearing of the case. The prayer of Dr. Murungu on the day was not protested by Mr. Waziri Mchome, learned counsel who had represented the defendant. This court then had considered all circumstances and nature of the case and ordered the hearing to proceed by way of witness statement. On 28th June 2023, the plaintiffs had already registered their witness statements and the case was scheduled for hearing from 10th to 18th July 2023. Nevertheless, the hearing proceedings could not take its course for a bundle of reasons, including determinations on points of law and Court of Appeal Sessions, until 26th March 2024. On the indicated date, Mr. Shiduki appeared in

this court praying for the court to waive or vary its order of 4th September 2024 contending that the proceedings and order of this court were at fault and may be rescued by waiving and varying the order. In order to substantiate his submission and prayer, Mr. 2 Shiduki registered five reasons (5) in two (2) letters drafted and registered in this court on 19th December 2024 and 26th December 2024. The prayer was protested by Dr. Murungu contending that court orders cannot be negotiated, but complied. In his opinion, this court has produced an order and the defendant is attempting to escape the same issued in September 2023 by registering reasons in February 2024. In replying the submission, Mr. Shiduki submitted that the reasons have merit and show the impossibility of executing the order and that the reasons were brought to the attention of the court to rescue proceedings in the instant case. This court after noting the raised reasons written in the two (2) indicated letters invite serious contests, it moved further to grant both learned minds one (1) month leave to research and register relevant materials on the subject. A month later, 25th April 2024, Dr. Chacha and Mr. Shiduki appeared in this court carrying multiple statutes and precedents and argued the five (5) points in support of their positions for almost four (4) hours. However, this court after scrutinizing the

registered materials, had found out that the parties are disturbed by one (1) issue, viz. whether after registration of witness statements, the plaintiffs can access the original valuation report, which was pleaded by the defendants in the fourth and sixth paragraphs of the Written Statement of Defence (WSD). However, 3 the WSD had declined the copy of whole valuation report in favor of some selected contents of the report which concern the plaintiffs. A reply from Mr. Shiduki was in negative whereas an answer from Dr. Chacha was in affirmative. It was fortunate that both learned minds have registered reasons in favor of their positions. According to Mr. Shiduki, after the registration of witness statements, the suit's hearing has begun hence in the present dispute, the plaintiffs' case has commenced. In that case, according to Mr. Shiduki, examination in chief is in the course and the plaintiffs cannot produce a prayer of discovery in nature. In order to substantiate his submission, Mr. Shiduki had produced the Civil Procedure Code (Amendment of the First Schedule) Rules of 2021, Government Notice Number 761 of 2021 (the Rules) which amended Order VIII and XVIII of the Civil Procedure Code [Cap. 33 R.E. 2022] (the Civil Code) and precedents in Msae Investment Company Limited v. Azania Bank Limited, Civil Appeal No. 190 of 2012 and Total Tanzania Ltd v. Samwel Mgonja, Civil

Appeal No. 70 of 2018. On the other hand, Dr. Chacha believes that the registration of witnesses' statements in the case is not similar to hearing of the case as the plaintiffs have not produced the statements to be exhibits in the case. According to Dr. Chacha Order XVIII of the Civil Code regulates hearing of suits and the same under Rule 13 allows 4 inspection at any stage of proceedings. In his opinion, hearing starts when the plaintiff is examined as per provisions of Order X Rule 2 and Order XIV Rule 5 of the Civil Code and documents may be produced in court under Order XIII Rule 1 (1) of the Code. In support of the move, Dr. Chacha cited the case of Sylivester Rwegira Bandio & Another v. NBC Limited, Civil Appeal No. 125 of 2018. Regarding the cited precedents in Msae Investment Company Limited v. Azania Bank Limited (supra) and Total Tanzania Ltd v. Samwel Mgonja (supra), Dr. Chacha distinguished them contending that they regulate admission of exhibits during hearing of the case. Finally, Dr. Chacha prayed this court to invoke section 95 of the Civil Code arguing that Mr. Shiduki is challenging the legality of the order through back door to avoid transparency in the case. I have grasped the submissions made by the learned minds, perused the instant record and scanned the new enactment of the Rules which amended Order VIII and deleted and substituted Order XVIII. As of

current, Order XVIII Rule 2 (1) of the Civil Code provides that: in any suit, evidence in chief shall be given orally or by a witness statement. The statement with substance of evidence is supposed to be filed immediately after the collapse of mediation, but before the time fixed for hearing, as the plaintiffs did in the instant 5 case. On the other hand, Rule 5 (1), (2) and (3) of Order XVIII of the Civil Code provides that: 5 (1) A party on whose behalf a witness statement has been filed shall cause the attendance of his witness during the hearing for the purpose of formal production of his statement, and tendering of exhibits or cross examination, if any; (2) When a witness appears for formal production of his statement and tendering of exhibits, he shall be sworn in the manner prescribed by the law in force as to swearing of witnesses; and (3) Once the witness statement has been formally produced in court, it shall form part of the record of the trial and it shall be read loudly by or on behalf of the witness. (Emphasis supplied) Reading Rule 5 (1), (2) and (3) together with Rules 6 (1) and 8 of Order XVIII it is vivid that there are four (4) necessary processes to be followed for parties who opt for production of materials in a case through witness statement. The processes, as from the enactment of Rule 5 Order XVIII of the Civil Code, viz. first, prayer to give evidence

through witness statement; second, witness 6 appearance during hearing of the case; third, prayer for the witness statement to be admitted; and finally, admission of exhibits associated with the witness statement. When all the indicated four (4) processes are completed without protests, a cross examination takes its course, and that will be undoubtedly called plaintiff's case hearing has started. Before production of the witness statement and exhibits in the case, a witness must be sworn and regulated by the laws regulating swearing of witnesses and tendering of exhibits in civil cases. In the instant case, we are at the first stage, where a prayer was registered and positively granted by this court for the plaintiffs to register witness statements. The case has not yet reached a stage where the plaintiffs pray for production of witness statements, let alone tendering of the intended exhibits. That is why this court in the instant case had been ordering hearing of the case since filing of the plaintiffs' witness statements. It acted within the law and that is the procedure. That is why reading the provisions of Rule 5 (5) of Order XVIII of the Civil Code it appears that filing of witness statement is not a starting button for civil proceedings hearing regulated by Order XVIII of the Civil Code. Similarly, the indicated Rule 5 (5) of Order XVIII recognizes non appearance of a

witness during production of his statement, tendering of exhibit or cross examination, to cause 7 strike out of his statement from the record. However, the Rule empowers courts to consider good cause of non-appearance of a witness to decline strike out of the statement. In my considered opinion, I think, Rule 17 Order XVIII of the Civil Code allows inspection of anything at any stage of proceedings when any question concerning the case arises. In the present case, the issue of the valuation report arose, which is central to the dispute on the procedures employed during the valuation and rate of compensation to the plaintiffs. The record shows that the issues which this court is invited to resolve, after registration of materials of the case, are: first, what is the cut date for purposes of valuation report; second, whether the valuation and compensation processes complied with the law and procedures; third, whether each plaintiff was fully compensated for all compensable properties and developments for the purpose of valuation and compensation as at the cut date; and finally, to what reliefs are the parties entitled to. In such circumstances, one cannot say the valuation report is irrelevant to the instant case. The contests whether the defendant's defence should be struck out and challenges associated with the perusal of the valuation report have already been resolved in a

case where the present defendant was a party (see: Zebadia Wanchara Chacha & 21 Other v. North Mara Gold Mine, Land Case No. 27 of 2022). In the 8 precedent this court stated that: an order dismissing a suit or striking out a defence under Order XI Rule 18 of the Code can only be made as a last resort and where the court satisfies itself that the omission is willful. The statement is similarly found in the precedent of in Sylivester Lwegira Bandio & Another v. National Bank of Commerce Limited (supra) cited by Dr. Chacha. However, in the present case, the record does not support willful omission of the court's order. The defendant had only prayed this court to grasp the reasons displayed in the two cited letters. As I indicated, the concerns in the first letter of 19th December 2024 on practical and administrative challenges have already been resolved against the current defendant in the precedent of Zebadia Wanchara Chacha & 21 Other v. North Mara Gold Mine (supra). Similarly, the court in the precedent had resolved that parties in land disputes contesting on the rate of compensation which is displayed by the valuation report, may access the same for fair trial. This is a center of dispute and the court must allow parties to enjoy the same for interest of justice. Parties in civil suits must be honest and register all necessary materials and if not, necessary orders may

be issued to cherish fair play in civil proceedings. This court is empowered to do so under Order XVIII Rule 7 and section 95 of the Civil Code, as I hereby do so. 9 Regarding the precedent in Total Tanzania Ltd v. Samwel Mgonja (supra), it was well distinguished in the precedent of Msae Investment Company Limited v. Azania Bank Limited (supra) for reason reflected at page 8 of the Ruling, that: the case originated in the commercial division of this court with distinct procedures of resolving commercial disputes. The decision in Msae Investment Company Limited v. Azania Bank Limited (supra) on the other hand regulates a situation where the protest was registered in the final stage of the plaintiff's case as per Rule 5 Order XVIII of the Civil Code. In the case, defence witness number two (DW2) had prayed to tender exhibit which was not cited in his witness statement and a protest was raised by the plaintiff's learned counsel. This court had ruled in favor of the defence and the document was admitted by using laws regulating admissibility of exhibits in civil cases. In the present case, it is obvious that the defendant had failed to produce relevant materials, in both letters, to persuade this court to waive or vary its order of 4th September 2024, which was repeated on 7th November 2023. In the end, I invoke section 95 of the Civil Code as necessary steps for the ends of

justice. The plaintiffs to access and peruse the valuation report to the extent of parts which concern them. The plaintiffs and defendant must consult each other and take necessary measures to resolve the so called io practical and administrative challenges in perusing the valuation report. I decline costs in the present contest as the defendant had brought materials in this case to see whether the court can waive or vary its previous order. It was unfortunate on its part that the materials were found to have no substance. court in the presence of Dr. Chacha Murungu, learned counsel for the plaintiffs and in the presence of Mr. Renatus Lubango Shiduki, learned counsel for the defendant through teleconference attached in this court. Judge 13.05.2024 11