TIBE RWAKATALE FINAL

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND CASE NO. 23 OF 2022 TIBE KENETH RWAKATARE ………………………………………………PLAINTIFF VERSUS JUMA SAID KASOLA ……………………………………………………. DEFENDANT JUDGMENT Date of hearing: 7/5/2024 Date of judgment: 12/7/2024 NONGWA, J. The epicentre of dispute is trespass of a land situated at Itumbi “B” area Ujerumani Village within Chunya district (suit land), the plaintiff Tibe Keneth Rwakatare has sued the defendant claiming to be the lawful owner of the suit land comprised in PML 001167 SWZ (PML). The background of the case as pleaded in the plaint is that in 2015 the late Getrude Pangalile Rwakatare was granted a Primary Mining Licence PML 001167 SWZ over the suit land and paid all the requisite fees. Following the demised of the owner of PML in 2020, the plaintiff and other relatives were appointed as administrators and suit land bequeathed to 1 the plaintiff. In 2022 when the plaintiff visited the suit land found it has been trespassed by the defendant and mining activities being carried therein. This was followed by some negotiation and finally the matter was referred to the Mining Commission which resolved that it had no jurisdiction over the matter. This has resulted to the current suit and the plaintiff prays for judgment and decree one, a declaration that the plaintiff is the lawful owner of the suit land comprised under primary mining licence No. PML 001167SWZ; two, vacant possession and eviction of the defendant, his workmen or agent from the suit land PML 001167SWZ; three, payment of mesne profits of Tsh 1,000,000/= per day effective from 15/9/2015 to date of judgment; four, general damages to be assessed by the court; five, interest at the court rate of 12% per annual on the decretal sum from the date of judgment till full final payment; six, cost of the suit; and seven, any or further relief the court shall deem fit and equitable to grant. When the defendant was served with the plaint, filed written statement of defence in which he disputed each and every allegation contained in the plaint save that the plaintiff visited the suit land in 2022 and the matter was referred to the Mining Commission. It was further pleaded that the defendant acquired the suit land in 1989 and part thereof was allocated to him by the then Ministry of Energy and Minerals in 1991 2 and in 1992 was given a Primary Mining Licence No. 37028. The defendant alleged further that has been in continuous and uninterrupted occupation using the suit land for agriculture and mining gold since then until 2022 when the plaintiff emerged. He added that in 2009 was issued with customary right of occupancy and following the declaration of Makongorosi as planning area, it was designated as plot 2 block “F” Ujeruman -Makongorosi and was issued with certificate of right of occupancy, title No. 58596MBYLR comprising 15.5 hectares and title No. 58596MBYLR with 2.7 hectares. Thus, prayed the suit be dismissed with costs. At the final pre-trial conference, parties agreed on the following issues; i. Who is the lawful owner of the land in dispute; ii. Whether the grant of PML means the grant of land rights as well; iii. Who between the parties has the minerals rights over the suit land; and iv. To what reliefs are the parties entitled. When matter came on for hearing, the plaintiff was represented by Mr. George Mshumba and during defence joined Mr. Derick Kahigi, both 3 learned counsels whereas the defendant was represented by Mr. Habibu Kamru Msonde, also learned counsel. Hearing of the case was through witness statement, the plaintiff testified as PW1 and summoned William Mauma (PW2). In total the plaintiff tendered seven documentary exhibits that is letter of administration (exhibit P1), statement of account and inventory (exhibit P2 collectively), Primary Mining Licence PML 001167 SWZ (exhibit P3), complaint letter by defendant and plaintiff to Tanzania Mining Commission (exhibit P4 and P5 respectively), letter by Tanzania Mining Commission (exhibit P6) and exchequer receipts (exhibit P7 collectively). The plaintiff’s case started with PW1 who stated that, the late Getrude Pangalile Rwakatare was the registered owner of PML effective from 15th September 2015 situated at Itumbi “B” area within Chunya district, PML was tendered and admitted as exhibit P3. That after death of the owner, it was bequeathed to him and became the owner save has not changed the name due to pendency of this case. He tendered statement of account and inventory which was marked as exhibit P2 collectively. Further evidence was that from the grant of PML, the suit land was in actual possession of the owner and later to himself after being bequeathed. The plaintiff went on to state that in 2022 paid visit to the 4 suit land and discovered that the defendant had invaded and trespassed his mining land by excavating 19 mining shafts and appropriating the mineral therein. PW1 went on to state that the defendant refused to quit the suit land and the matter was referred to mining office of Chunya to resolve it. Complaint by the defendant to the mining office and a letter by plaintiff to mining office were admitted and marked as exhibit P4 and P5 respectively. That the mining officer, PW2 visited the suit land and established that the suit land was trespassed by the defendant. PW1 went on to state that after a dialogue with the defendant, agreed to compensate him Tsh. 5,000,000/= in cash and verbally that 30% for already mined mineral would be agreed. While awaiting to conclude the agreement, the defendant referred the dispute to Tanzania Mining Commission, Mining Dispute No. 02 of 2022 which resolved that it had no jurisdiction over the matter. A letter from Tanzania Mining Commission was tendered and marked as exhibit P6. He added that he has paid all fees, exchequer receipts were received and indorsed as exhibit P7. Further evidence of PW1 was that to date the defendant is in actual possession of the suit land excavating and mining without any licence or permission and has denied the plaintiff access to the suit land. PW1 said 5 is entitled to Tsh 1,000,000/= for each day of trespass from 15/9/2015 and prayed for the reliefs already referred. During cross examination, PW1 stated that he did not know if grant of mineral right is not granting surface right, under PML was not the surface right, he was sure his mother saw the surface owner. That, mining commission would not give PML knowing that somebody is there since 1999. Supporting PW1 evidence on PML, PW2 recalled on 16/2/2022 PW1 went to complain to their office that the defendant has invaded and trespassed his mining area held under PML. After checking in the system, found the owner was Getrude Keneth Rwakatare. That he summoned the defendant who denied to have invaded and trespassed the mining land. PW2 added that he visited the mining area and found 19 shafts which shown truly the defendant had trespassed PML. That the defendant agreed to vacate the area and compensate the plaintiff on the amount to be agreed. Later the defendant referred the matter to their office but it was not heard by the commission for lack of jurisdiction. PW2 stated, the plaintiff was processing renewal of the PML and they were ready to register it in the plaintiff’s name. 6 On cross examination PW2 stated PML was in name of Getrude Rwakatare and it was yet to be changed. That the plaintiff processed renewal and change of name. That he did not know who has the surface right over the suit land. That the one with mining licence has to go and compensate the surface land right owner, the mining licence does not give surface right, but he can call surface right intruder if do mining. In defence the defendant testified as DW1 and called John Emmanuel Manyehe (DW2) and Clement Jonathan Msapi (DW3). Also had three documentary evidence, exchequer receipts for PML 37028 (exhibit D1), customary right of occupancy (exhibit D2) and two certificate of right of occupancy exhibit D3 collectively). In his testimony DW1 said that he acquired the suit land in 1989 and part was allocated to him by Ministry of Water Energy and Minerals in 1991 and in 1992 was given Primary Mining Licence PML 37028, exhibit D1. He said has been in continued and uninterrupted occupation conducting agriculture and mining gold since then. Further evidence was that in 2009 he was granted customary right of occupancy of the area covering 45 acres including the suit land, the certificate was tendered and admitted as exhibit D2. That following declaration of Makongorosi as planning area, it was designated as plot 2 block “F” Ujerumani - 7 Makongorosi and was issued with two certificate of right of occupancy, title No. 58596MBYLR comprising 15.5 hectares and title No. 58596MBYLR with 2.7 hectares. Title deeds were admitted as exhibit D3 collectively. DW1 went on to state that he has been in suit land for over thirty years digging and maintaining gold shafts, gold ore crushing and washing plant, gold VAT leaching plant, residence for workers and families, keeps livestock and has drilled water dams. That the plaintiff never visited the suit land. It was further testimony of DW1 that having learnt that there was boundary or double allocation of the primary mining licence referred the dispute to Mining Commission of Tanzania, Mining Dispute No. 02 of 2022 but it was not resolved. That the plaintiff was not the registered owner of PML and the licence had expired. DW2 refuted the claim that he agreed to vacate and compensate the plaintiff. In cross examination DW1 said the dispute was land ownership, that one to mine has to have licence from the government, that PML was wrongly granted. That when he complained to commission, he was told 19 shafts was in PML. In support of DW1 John Emmanuel Manyehe (DW2) testified that he has been a gold miner in Ujerumani village since 1987 and DW1 started mining in 1989. That in the suit land there are mining pits, farms, livestock 8 and dam. Further that from 1996 to 2009 he was a Ujerumani hamlet chairman and the defendant applied to be granted title documents of his land and they recommended to Mkola village that title be issued to the defendant. That apart from the defendant no any other person was doing mining activity in the site. Another witness for defendant was Clement Jonathan Msapi (DW3), he testified that has knew the defendant since 1989 as a gold miner in Ujerumani village and joined him in 1992 to date. That the defendant has been mining the area from 1992 without interruption and no any person asserted ownership of the land. At the close of hearing, counsels prayed and were granted leave to file final submissions. Starting with the plaintiff final submission, counsels for the plaintiff referred to paragraph 3, 4, 5, 6, 7, 8, 11, 14 and prayers in the plaint and concluded that the claim of the plaintiff was about mineral rights comprised under PML 001167 SWZ. This, they said was supported by exhibit P3. Further that, the defendant did not produce and tender any mineral licence over the suit land instead produced certificate of title, exhibit D3. Counsels added that exhibit D1 granted rights over land located at Ujeruman Makongorosi Chunya without stating the specific land. To that end counsels said dispute over mineral rights was proved by 9 the plaintiff through exhibit P3 which refers to land situated at Itumbi “B” while certificate of title exhibit D2 and D3 to land located at Ujerumani Makongorosi Chunya which had nothing to do with mineral rights of the plaintiff. Further submission was that under mineral regime ownership of land is proved by having mining licence. He referred to the case of Hosea Katampa vs Ministry of Energy & Minerals & Others, Civil Appeal No. 221 of 2017) [2018] TZCA 225 (3 October 2018; TanzLII) and section 67(a)(b)(i)(ii) of the Mining Act [Cap. 123 R: E 2019] to bolster the point that was a holder of mineral licence. With respect to the second issue, it was submitted that minerals rights are governed by the mining laws whereas land rights are regulated by the Land Act and Land Registration Act. Counsels for the plaintiff submitted that when primary mining licence is granted the holder of right of occupancy cease to have authority over land but is sheltered under section 95(1)(b) of the Mining Act, that the holder of mineral rights shall not exercise any of his rights under the licence of this act except with thorough consultation with relevant local government authorities, including village counsel and thereafter the written consent of the lawful occupier. They argued that mining authority are not precluded from 10 granting mining licence where the land is held under certificate of occupancy save the mineral right holder had to comply with condition stipulated under the law. With the above submission, counsels for the plaintiff were resolute that the defendant did not complaint to relevant authority for allocating the suit land to the plaintiff without obtaining his consent, that the defendant did not sue the relevant authority for double allocation of the suit land, that titles were obtained during pendency of this suit and that there was no any counter claim over ownership of the suit land. The third and fourth issues was submitted to have been proved by the plaintiff and that was entitled to reliefs sought. Counsel for the defendant started his submission with the canon law that he who alleges must prove. This he said as the plaintiff claims to be the owner of the suit land had to prove on balance of probability as per section 110 of the evidence Act [Cap 6 R: E 2022] and referred the court to the case of East African Road Services Ltd vs J.S Davis & Co. Ltd [1965] EA 676, Abdul Karim Haji vs Raymond Nchimbe Aloyce & Another [2006] TLR 419 and Anthony M. Masanga vs Penina (Mama Mgesi) & Another [2015] TLR 46. 11 Dealing with the first issue on who was the lawful owner, Mr. Habibu submitted that the plaintiff has failed to prove that the suit land belongs to him, because his ownership was pegged on PML which was granted to Getrude Pangalile Rwakatare and expired on 15/9/2022. That PW2 stated in his evidence that new PML was not issued due pendency of the suit and that there was no documentary proof from PW1 and PW2 on any application for renewal. Mr. Habibu submitted that the defendant proved that has been in occupation since 1989 cemented by grant of mineral rights, exhibit D1 and ownership of land through exhibit D2 and D3 collectively which was supported by evidence of DW1 and DW3. Counsel submitted certificate of title is conclusive evidence to prove ownership over the land unless proved otherwise. Here he cited the case of Athumani Amiri vs Hamza Amiri & Another, Civil Appeal No. 8 of 2020) [2022] TZCA 772 (6 December 2022; TanzLII). He concluded that defendant version was strong than plaintiff however typographically stated the plaintiff was a lawful owner of the suit land holding valid certificate of title over it. With regarding to second issue, whether grant of primary mining licence means grant of land rights, counsel said it was not and referred to section 2 of the Land Act [Cap 113 R: E 2019] which excludes mineral and 12 petroleum form being land. Further reference was made to section 95(1)(e) of the Mining Act which restrict holder of mineral rights to exercise his right over land except with written consent of holder of surface rights which was also testified by DW2 (sic PW2) mining officer who testified that grantor of mining licence should seek consent of the surface right holder. On who had mineral rights between the litigants, Mr. Habibu submitted that claim of the plaintiff on ownership of PML was based on exhibit P2 collectively which was filed on 06/10/2023. Because at that time PML had expired then administrator of estates had no title to bequeath to the plaintiff. He referred to the maxim of nemo dat quod non habet as applied in the case of Pascal Maganga vs Kitinga Mbariki [2019]1 TLR 623. He contended, since the defendant was occupying the suit land conducting mining as per exhibit D1 and agriculture without any interruption was the one who had mineral rights. On what reliefs parties are entitled prayed the court to dismiss the suit with cost, declare the defendant the lawful owner of the suit land, declare minerals right does not mean grants of land right and declare the plaintiff has no mineral right over the suit land. 13 I have considered pleadings, evidence presented and taken into account final submissions of the parties. I will start with the first issue who is the lawful owner of the suit land. From the pleadings ownership of the suit land by the plaintiff is pegged on PML 001167 SWZ, exhibit P3 whereas that of the defendant on certificate of titles exhibit D2 and D3 collectively. In final submission counsel for the plaintiff argued that under mineral regime ownership of land is proved by having mining licence. Adversely the defendant’s counsel submitted ownership of land is proved by certificate of title. To resolve the first issue, it important to look on how one acquires land rights. Land rights are governed by the land laws as rightly pointed by all counsels, the term land is defined under section 2 of the Land Act, it provides; ‘Land includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water.’ Land rights are acquired by the procedure provided for under the Land Act and village Land Act. Aware of land ownership in Tanzania, the Mining Act under section 2 provides; 14 “Lawful occupier” in relation to any land means the lawful occupier of land in accordance with the Land Act, and the Village Land Act.’ To be a lawful occupier of land in mining areas, the occupancy must be the one recognised under the Land Act and Village Land Act. In this case the plaintiff tendered PML 001167 SWZ as proof of his ownership of suit land. He added that from 2015 when the PML 001167SWZ was granted to the late Getrude Pangalile Rwakatale was in occupancy of the land and uninterruptedly. On part of the defendant stated that has been in occupancy since 1989 and tendered certificate of titles exhibit D2 and D3. I have considered evidence of both parties and find that the plaintiff has failed to establish his title over the suit land, his reliance on primary mining licence, exhibit P3 which granted him mineral rights has nothing to do with land rights. The plaintiff has not led any evidence indicating that at the grant of PML in 2015 was the lawful occupier of the suit land. To the contrary the defendant has proved his ownership of the land through oral evidence which was not controverted in any way. The same was supported by certificate of title, exhibit D2 and D3. It is settled law is that a person with a certificate will always be taken to be a lawful owner of land unless it is proved that the certificate was not lawfully obtained. 15 In the case of the court Amina Maulid Ambali & Others vs Ramadhani Juma, Civil Appeal No. 35 of 2019 [2020] TZCA 19 (25 February 2020; TanzLII) approved the observation made by Dr. R.W. Tenga and Dr. S.J. Mramba in their book bearing the title Conveyancing and Disposition of Land in Tanzania: Law and Procedure, Law Africa, Dar es Salaam, 2017, at page 330: ‘… the registration under a land titles system is more than the mere entry in a public register; it is authentication of the ownership of, or a legal interest in, a parcel of land. The act of registration confirms transaction that confer, affect or terminate that ownership or interest. Once the registration process is completed, no search behind the register is needed to establish a chain of titles to the property, for the register itself is conclusive proof of the title.’ [See also; Athumani Amiri vs Hamza Amiri & Another, Civil Appeal No. 8 of 2020) [2022] TZCA 772 (6 December 2022; TanzLII) cited by counsel for the defendant]. The defendant being in possession of certificate of title which is proof of ownership of land, in absence to the contrary he is a lawful owner. There was argument that title deeds referred to the land situated at Ujerumani Makongorosi Chunya as opposed to the suit land which is 16 located at Itumbi “B” area. I have read exhibit P3 which show that PML was covering an area located at Itumbi “B” in Chunya, exhibit D2 to area located at Mkola village within Makongorosi in Chunya and exhibit D3 collectively refers to land located at Ujerumani village Makongorosi Chunya. Indeed, the same might be referring to different areas however I am settled that parties are at once and refers to one and the same land. That aside there was no dispute on location of the suit land, the same was not pleaded and does not feature in evidence of parties. To bring it in final submission was erroneously because submission is not evidence. In Jao Oliveira & Another vs IT Started in Africa Limited & Another, Civil Appeal No. 186 of 2020 [2023] TZCA 7 (8 February 2023; TanzLII) the court stated as a matter of general principle, submissions by counsel are not evidence. Be that it may PW1 and PW2 testified that they visited the suit land and found the defendant invaded and has established mining activities in the suit land and is doing other activities therein, the matter which was admitted by the defendant. In the end, I find that the plaintiff has failed to prove ownership of the suit land as opposed to the defendant whose title was proved by tendering certificate of title. 17 Coming to second issue whether grant of mineral rights means grant of land right. Section 2 of the Mining Act defines “Mineral rights” to means licences referred to in section 7, the referred section 7 mention kind of licences which may be issued. Under the mining regime, ownership is proved by having mining licence, the ownership envisaged here is that of mineral rights. This was emphasized in the case of Hosea Katampa vs Ministry of Energy & Minerals & Others, Civil Appeal No. 221 of 2017 [2018] TZCA 225 (3 October 2018; TanzLII) ‘What is meant by "evidence of ownership" in the context of Part IV of the Mining Act, 2010 (ACT NO. 14 of 2010) is documentary proof in the form of Prospecting Licence, or Special Mining Licence, or Primary Licences.’ Whereas, ownership of land is proved by having certificate of title or any occupancy recognized under land laws. The reason under the Mining Act, land subject to a mineral right has reference to an area of land in respect of which a mineral right and or a licence for a processing area has been granted and subsists. It is worth note that the plaintiff counsel submitted that land ownership is proved by mining licence. This is contrary evidence of PW2 who testified that mineral rights are not surface right. This evidence is what section 95(1)(e) and 97 of the Ming Act states. Section 95(1)(e) provides; 18 ‘95(1) The holder of a mineral right shall not exercise any of his rights under his licence or under this Act- (e) in respect of any land within any city, municipality, township registered villages or demarcated settlement, except with the written consent of holders of surface rights and of the responsible Minister or the authority having control over the city, municipality, township registered villages or demarcated settlement.’ Emphasize added. Whereas section 97 provides; ‘97(1) Where the rights conferred by a mineral right cannot reasonably be exercised without affecting injuriously the interest of any owner or occupier of the land over which those rights extend as required under section 96, the mineral right holder shall; (a) advise the owner or occupier of the land to vacate the area, and consult the relevant local government authority on amendment of the land use plan; (b) submit a proposed plan on compensation, relocation and resettlement of the owner or occupier of the land as per the Land Act. (2) The procedures established under the Land Act and the Village Land Act with regard to establishing the market value of land shall apply in determining fair and 19 reasonable compensation of land referred in this section and section 96.’ [Emphasis supplied]. The above provision is clear that grant of mineral rights can only be exercised when the occupier and person with surface land right is compensated. The court in the case of Hosea Katampa (supra) stated that; ‘We are not sure from the evidence how the appellant and fellow small-scale miners entered the surface under which they mined for gold. As a result, there is no evidence to show if the appellant had any surface land rights over which the Special Mining Licence (Exhibit Dl) was granted to claim lack of consent. Section 95 (1) of the Mining Act, 2010 require holders of mineral rights to seek consents of surface land right holders before exercising their mineral rights.’ Emphasize supplied. [See also; General Manager African Barrick Gold Mine Ltd vs Chacha Kiguha and 5 Others, Civil Appeal No. 99 of 2019 [2024] TZCA 469 (14 June 2024; TanzLII)]. In this case PW2 was clear that grant of mining licence is not grant of surface right and which is the correct position of the law already referred above. Under mining regime, it is possible for one to have mineral right but not surface right or land right under the Land Act and village 20 Land Act in mining area. That is why the law provide guidance on part of the mineral right owner to seek consent and compensate occupier of land before exercising his mineral rights. Therefore, the second issue is answered in negative, that is, grant of mineral right is not grant of surface right or land right. With regard to third issue who has mineral rights between the parties, under the Mining Act no mining or mineral activities can take place outside the strict legal regime provided under the Mining Act. Section 5 of the Mining Act, 2010 illustrates the extent which the Republic has over minerals that are found on any land, or under any land. Such minerals do not in law belong to either the occupier of land or any person who finds the mineral on top of the land outside the mineral licensing statutory regime. In this case the plaintiff tendered PML exhibit P3 and was supported by PW2, so the defendant tendered exhibit D1, each claiming to have mineral right over the suit land, and this case was preferred as the land case. Under the Mining Act all dispute over arising out of mining operations or activities have its own mechanism and procedure of resolving it. Section 22 of the Mining Act provides; ‘The functions of the Commission shall be to: 21 (a) –(d) N/A (e) resolve disputes arising out of mining operations or activities; (f) –(M) N/A (n) To issue, suspend and revoke exploration and exploitation licences and permits;’ Section 119 of the Mining Act sets gives power to the Mining Commission to settle disputes over mineral operation. It provides; 119.-(1) The Commission may inquire into and decide all disputes between persons engaged in prospecting or mining operations, either among themselves or in relation to themselves and third parties other than the Government not so engaged, in connection with- (a) the boundaries of any area subject to a mineral right; (b) the claim by any person to be entitled to erect, cut, construct or use any pump, line of pipes, flume, race, drain, dam or reservoir for mining purposes, or to have priority of water taken, diverted, used or delivered, as against any other person claiming the same; (c) the assessment and payment of compensation pursuant to this Act; or (d) any other matter which may be prescribed. 22 (2) The Commission may make any order which may be necessary for the purpose of giving effect to the decision in proceedings pursuant to this Part, and may order the payment, by any party to a dispute, of such compensation as may be reasonable, to any other party to the dispute.’ In this case as parties claim that each has mineral right, although there is evidence that the matter was referred to the Mining Commission but declined to solve it. After reading exhibit P4, P5 and P6, the matter was mixed of mineral right and land dispute. Having resolved the issue of land ownership parties may refer to the Mining Commissioner over mining operations. The last issue is to what reliefs are parties entitled to, the plaintiff claimed varieties of reliefs in the plaint, following the determination of the issues framed, the plaintiff having failed to prove the case, is therefore not entitled to any reliefs. In the end I dismiss the suit with costs. V.M. NONGWA JUDGE 12/7/2024 23 DATED and DELIVERED at MBEYA this 12th day of July, 2024, in presence of plaintiff, Mr. Kamru Habibu Msonde for the Plaintiff and Mr. Ntegwa holding brief of Mr. Kahigi for the Defendant. V.M NONGWA JUDGE 24