MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA MISC. CIVIL APPLICATION NO. 000021981 OF 2024 REFERERENCE NO. 202409041000021981 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF THE ACTION OF THE RESPONDENT IN PAYING 1% OF THE TOTAL GOLD PRODUCED FROM NYANGOTO VILLAGE AREA TO KENG'ANYA ENTERPRISE LIMITED BETWEEN YUSUPH WEGESA WANGUBO.......................................................... APPLICANT VERSUS NORTH MARA GOLD MINE LIMITED (BARRICK) formerly known as EAST AFRICAN GOLD MINE LIMITED.......................................... RESPONDENT RULING 15™ October & 20 November, 2024 M. L, KOMBA, J.: This is ruling resulted from an application for leave to file an application for Judicial Review for orders of certiorari and mandamus. The application has been preferred by way of chamber summons made under Section 2 (3) of the Judicature and Application of Law Act, Cap 335, Section 18(1) and 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Page 1 of 14 Act, Cap 310 [R.E 2019] and Rule 5(1) and (2) of Law Reform (Fatal Accidents and Miscellaneous Provisions) (The Judicial Review Procedure and Fees) Rules, 2014 (GN No. 324 of 2014) (the Rules). The application is accompanied by grounds and reasons sworn in affidavit by the applicant Yusuph Wagesa Wangubo. Brief background to this application is that, the applicant was appointed by the village, as a village member to investigate on the issue of contract between Nyangoto village Council and respondent. What trigger his investigation is the billboard notice to public on 13 March 2024 that the village received money from the Respondent on the 12th of March 2024 to the tune of TZS 73,482,853.87 as royalty to the village for 1% of the total gold produced from Nyangoto Village area being implementation of terms of a contract entered on 08th September, 1995 between Nyangoto Village and the Respondent (Formerly known as East African Gold Mine Limited). Keng'anya Enterprise Limited obtain Prospective Mining License of the same area owned by Nyangoto Village and respondent started making payment of royalty to Keng'anya Enterprise Limited instead of the village which is said to be the actual owner of the area which the gold is produced. It is alleged that respondent has not been acting in good faith Page 2 of 14 by operating his mining activities since 2001 to the detriment of villagers and beneficiaries of the aforesaid agreement. Applicant is praying for leave for him to apply for an order of certiorari to quash the decision of the Respondent to declare and make payment of TZS 73,482,853 as 1% of the total gold produced from Nyangoto Village area and to mandamus to compel applicant and respondent to investigate and declare actual royalty entitled Nyangoto village. Upon filling of the same, respondents raised a preliminary objection and prayed it to be heard on the date scheduled for hearing of Application that; 1. To the extent that the Applicant seeks leave to challenge the action of the Respondent in paying 1% of the total gold produced in Nyangoto Village area, emanating from contractual andprivate affairs of the Respondent, being a private company and not in the discharge and/or exercise of function or duty of a statutory or public nature, and therefore not amenable to judicial review, this Court lacks Jurisdiction to hear and determine the application. 2. To the extent that the application has been filed by the current Applicant, an individual, seeking to enforce the rights of Nyangoto Village Council, a corporate body established under the Local Government (District Authorities) Act, No. 7 of 1982, which is a corporate body, in terms of the provisions ofsection 26 (2) (b) of the Page 3 of 14 said Act, that is capable, in its corporate name, of suing or being sued, the Applicant lacks locus standi to bring this application to enforce any alleged rights, contractual or otherwise, of the Nyangoto Village Council, against the Respondent. 3. To the extent that this application seeks to enforce contractual matters between Nyangoto Village Council and the Respondent, under the Law of Contract Act (Cap 345R.E. 2019) and annex "JW- 5" to the affidavit, and to the extent that this application is preferred by way of judicial review under the Judicature and Application of Laws Act (Cap 358 R.E. 2019) and the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap 310 R.E. 2019) and the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, this application is incompetent. Upon application by the applicant, the application was disposed through written submission whereby the submission by the applicant was filed by Advocate from Legal and Human Right Center while the respondent submission filed by Advocate Lubango Shiduki. I decided to entertain Preliminary Objection first as was directed in Abubakar Athumani vs Daudi Lyakugile TA D.C Aluminium & Another, Civil Appeal No. 86 of 2018. Page 4 of 14 Mr. Shiduki combined 1st and 3rd point in his submission and the 2nd point was submitted separately. In the combined ground Mr. Shiduki is challenging the competence of application in which, the applicant is seeking leave of this court so that he can challenge the 1% of royalty paid by respondent which is contractual and private affairs of the respondent as it is not a public body. The contractual affairs exist between respondent and the Nyangoto Village Council is governed by the Law of Contract Act, Cap 345 R.E 2019, he submitted. It was his submission that judicial review falls under administrative law which deals with administrative actions and decisions of public or statutory authorities or bodies while support his submission by the book ofB.D. Chipeta, Administrative Law in Tanzania: A Digest of Cases, Mkuki na Nyota Publishers, 2009, at page xxvii. Apart from that book Counsel also cited the decision of this court in John Mwombeki Byombalirwa vs The Regional Commissioner and Regional Police Commander [1986] T.L.R. 73, at page 75 (paras E-F) that; 'Judicial review is an important weapon in the hands of the Judges of this Country by which an ordinary citizen can challenge an oppressive administrative action. And judicial review by means Page 5 of 14 ofprerogative orders (certiorari, prohibition and mandamus) is one of those effective ways employed to challenge administrative action..! It was his submission that for a person to resort to judicial review there should be no more appropriate or alternative remedy available to that person and the five elements for judicial review must be available as listed in John Mwombeki Byombalirwa (supra) and Msafiri R. More and 22 Others vs Morogoro District Council & 6 Others, Civil Case No. 6 of 2023. Analysing the affidavit of the applicant, counsel submitted that paragraph 11 with annexture JW7 applicant deponed that respondent changed his former name to North Mara Gold Mine Limited and the certificate to that effect was issued by the Registrar of Companies. Basing on that fact he said the respondent is therefore a private limited liability company incorporated under the Companies Act, No. 12 of 2002. Presence of the certificate proves that the Respondent is neither an administrative, governmental, public nor quasi-judicial body. Mr. Shiduki went on submitting that applicant's affidavit does not state if the Respondent discharges any imperative duty or function of a public nature entrusted to Page 6 of 14 it by law. He insisted that judicial review does not apply against the Respondent. He further submitted that under paragraph 8 applicant is referring to annexture JW5 which are two contracts signed by respondent and Nyangoto village and complained of non-compliance of contractual terms which are allegations for breach of contract, in which the available remedy is suing for breach of contract. He prayed this court to find the combined points to be sustained. Arguing for the 3rd point, counsel for respondent directed his submission on locus standi of the applicant that for the applicant to have locus in any matter has to show that his rights or interest has been breached or interfered with as was decided in Sweetbert Mathias Kutaga (Dully constituted Attorney of Alizara Kasamali Rajani) vs Eugenia Rutatora & 3 Others, Civil Appeal No. 565 of 2023. In the current matter he submitted that annexture JW 5 of the affidavit is referring to agreement which was signed on 08/09/1995 between the Respondent (then East African Gold Mines Limited) and Nyangoto Village which was registered with number MR/KJ 353/92 which make it to be corporate body Page 7 of 14 established under the Local Government (District Authorities) Act, No. 7 of 1982, which in terms of the provisions of section 26 (2) (b) of the said Act, is capable, in its corporate name, of suing or being sued. He insisted that if there is any breach in signed agreements, it is the Village which is supposed to take legal action. About representation of the applicant, he contends the representation by the applicant to be not proper. If at all applicant was appointed as said, it was his submission that he was not supposed to appear as a party in legal proceedings. He prayed application to be struck out with costs. Applicant resisted the objection on submission that point of law need to be pointed clearly but respondent failed to cite any provision of law or relevant authority to support his submission that judicial review cannot be against a company. He supported his submission by citing a decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd. (1969) EA 696 that; 'a point of law which has been pleaded, or which arises by dear implication out of a pleading and which if agreed as a preliminary point may dispose of the suit' Page 8 of14 Analysing the quotation from the book of B. D. Chipeta, Administrative Law in Tanzania (supra), as referred by the respondent, the applicant submitted that respondent fall under the category of 'other bodies' which in their administrative powers they exercise, they also provide rights to individuals by paying 1% of total gold produced, the fund which benefit villagers including the applicant. He went on submitting that deliberately respondent ignore to make right payment, action which affect villagers hence applicant is on right track in this application for judicial review. Applicant resisted that there are no other remedies available to him and that he did not pursue judicial review for breach of agreement, rather, he seeks leave to applying for orders of certiorari to quash administrative decision of the respondent which is declared incorrect along with order of mandamus to compel both parties herein to do investigation. It was his submission that these actions cannot be obtained in normal suit. About locus standi, applicant re-iterate what is in paragraphs 2 and 3 of his affidavit and submitted that he is beneficiary of the fund paid to village as royalty and it is the whole community of Nyangoto which is affected by the amount paid by respondent. He cited the case of Josia Baltazar Baisi Page 9 of14 and 138 Others vs Attorney General and Others, Wise Cicil Appeal No. 39/1997 (1998 T. L. R. page 331 in which the court ruled that; 'today locus standi Is not viewed in its original narrow meaning, it has been expanded to include sufficient interest so that any one with sufficient interest may seek a remedy on behalf of others who are also injured.' He went on submitting that applicant has sufficient interest to pursue the judicial review for the aforesaid orders as he is beneficiary of the royalty paid to village. Failure to pay correct amount by respondent, not only affect other development projects but also affects social services in Nyangoto village. He prayed this court to find the PO has no legal base and be dismissed with costs. When given a chance for rejoinder counsel Shiduki clarified that point of law may be based on statute or judicial decisions (precedent). He further submitted that respondent does not fall under other bodies which discharge functions of public nature as defined by applicant because there is a key word 'entrusted to the do so by law' was left out. He insisted that by its nature respondent does not perform any function of public nature entrusted to it by law as it is purely a private limited liability company and Page 10 of 14 the nature of relationship between respondent and Nyangoto village is contractual. I have carefully made a close follow up of submission by parties, my task is to decide where PO has merit. First of all, there is no doubt that applicant is applying for leave of this court to file judicial review, application which is guided by Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN No. 324 of 2014. From Affidavit and even in his submission, applicant intends to challenge the amount in 1% of the royalty which is not well calculated basing on agreements signed by Respondent and the Nyangoto Village and if leave granted he shall pray for ce/t/b/sr/and mandamus in which he intends to quash decision of the respondent for not paying the proper amount of 1% and to compel respondent and himself to make investigation and declare actual royalty to be paid to Nyangoto Village and to compel respondent to pay royalty from 2012 to 2023. Respondent objected the application on ground that the applicant intends to enforce contractual matters which is governed by Cap 345 and not administrative issues. Applicant did not respond on this but challenge the Page 11 of 14 PO that it lacks qualities as respondent did not mention any section of law neither authority. I wish to state that legal points may be established by provision of law or precedent and the respondent cited precedents from the Court of Appeal and therefore the Preliminary Objection has qualities needed by law. Judiciary review, as submitted by counsel for respondent is applied to administrative bodies which perform or discharge functions of public nature entrusted by law. Respondent is a company registered under the Companies Act as exhibits from applicant proof. It is not enough to say that the action of respondent to paying royalty to village means it perform public function, there must be obligations provided by the law. Further, judicial review must challenge administrative decision. However, in its affidavit and statement applicant is challenging calculation based on agreement. This is not administrative decision rather is contractual obligation and as per section 37 (1) of Cap 345 only party to contract may enforce its performance. I find the matter is not fit for judicial review as there is other and alternative remedies basing on nature of the claim which is enforcement of the contract. Page 12 of 14 About the locus standi of the applicant, first, locus standi simply defined to be the right or legal capacity to bring an action or to appear in a court. See Peter Mpalanzi vs Christina Mbaruku (Civil Appeal 153 of 2019) [2021] TZCA 510 (23 September 2021). In Lujuna Shubi Ballonzi vs Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, Samatta, J (as he then was) had the following to say on locus standi; "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions.' Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it. See Godbless Lema vs Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 and Sweetbert Mathias Kutaga (Dully constituted Attorney of Aiizara Kasamali Rajani) vs Eugenia Rutatora & 3 Others (supra). Page 13 of 14 Further, locus standi is a point of law rooted into jurisdiction of the court. In the later case it was decided that for there to be a locus standi, 'a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with.' Just as submitted by counsel for the respondent that applicant filed this suit in his own name on shelter that he is representing Nyangoto village. Issues which make a foundation of his application is rooted in an agreement in which Nyangoto village and respondent signed. If there is breach of any term in the said agreement it, is Nyangoto village who is supposed to institute legal action, which in fact may make appearance through natural person. From the cited cases, applicant has no interest in the terms of agreement which he is not party. I find this point too has merit. In general, I find the PO raised has merit and is hereby sustained. The application is hereby dismissed with costs. DATED at MUSOMA this 20th day of November, 2024. u< M. L. KOMBA JUDGE Page 14 of 14