Afrika Mashariki Gold Mines Ltd v Magige and Others (Civil Case No. 73 of 1999) [2000] TZHC 691 (24 September 2000)

AFRIKA MASHARIKI GOLD MINES LTD v. NYIRABU MAGIGE and OT H ERS __________________________ 221 Civil Procedure Code as amended by Government Notice Number 508 of 22 January 1991. Mr D ’ Souza, learned advocate who represented the respondent, submitted that the application was without merit. For the reasons set out above I am in full agreement with him. Accordingly the application fails and it is dismissed with costs. AFRIKA MASHARIKI GOLD MINES LTD v. NYIRABU MAGIGE and OTHERS HIGH COURT OF TANZANIA ATMWANZA (Mroso, J.) CIVIL CASE No. 73 OF 1999 Land Law - Right of occupancy of a mining plot - Conflict between occupier and indigenous inhabitants - Whether High Court has jurisdiction or whether dispute should be referred to Commissioner for Mines. The plaintiff, a mining company holding a Right of Occupancy over a mining area sued indigenous inhabitants whom, he contended, were illegally occupying its land. Some of the defendants raised a preliminary point of objection that the court had no jurisdiction to adjudicate on tRe dispute arguing that under the Mining Act Number 5 of 1998, it is the Commissioner for Minerals who should decide on such disputes. Held: Disputes relating to the granting of the right of occupancy and the use of such land come under the provisions of the Land Ordinance Chapter 119, and do not necessarily come under the provisions of the Mining Act 1998. Preliminary objection overruled

262 TANZANIA LAW REPORTS [2002]T.L.R. A Case referred to: (1) Attorney General v. Lohay Akonaay and Joseph Lohay [1995] T.L.R. 80 g Statutory provisions referred to:

1. Land Ordinance Chapter 119
2. Mining Act Number 5 of 1998, sections 101, 102 and 103 q 3, Land Ordinance Chapter 113 of the Revised Laws Mr Byabusha, for the Plaintiff Mr Kweka of the TLC, for the Defendants D Mr Bhoke Muniko, for the second Defendant RULING (Delivered 24 September 2000) E Mroso, J.: The plaintiff - Afrika Mashariki Gold Mines Ltd, a mining company, holds a Right of occupancy with Certificate Number 12435, granted under the Land Ordinance Chapter 113 of the Revised Laws F of Tanzania over an area of 358.07 hectares in the Nyangoto and Matongo village areas Tarime District, Mara Region. The area, the subject of the Right of Occupancy, is described as Mining Plot ML Number 342. It is alleged in the Plaint that the local residents within G the area covered under the Right of Occupancy had their property evaluated and compensation assessed, by the Commissioner for Lands. The total amount of compensation was assessed at TZS. 128 887 147 and the amount was duly paid by the plaintiff to the Commissioner H for Lands for onward payment to the affected residents. The plaintiff also claims to have made additional ex-gratia payments which in turn would be paid to the occupiers of the land which was granted to it. Some of the resident occupiers accepted the compensation but i others declined to accept it.

AFRIKA MASHARIKI GOLD MINES LTD v. NYIRABU MAGIGE and OTHERS 263 Those who accepted compensation due to them and those who declined to accept it subsequently refused to vacate from the land which was granted to the plaintiff despite notice to do the same. Not only that, other people entered it and effected certain developments on it like erecting building and growing crops without permission from the plaintiff. The plaintiff has filed a suit in this Court seeking several reliefs against all those groups of people who it considers to be trespassers. Some of the reliefs asked from this Court are:- an order for the eviction of the defendants from the suit land, an injunction order barring them from entering and or remaining on the suit land, the defendants to pay damages to the plaintiff for trespassing on its land and payment of special damages amounting to USD. 320 500. Some of the defendants, those being represented by the Tanzania Legal Corporation (TLC), in their joint written statement of defence have raised two preliminary points of objection, namely: (a) That this Court has no jurisdiction to adjudicate on the dispute between the parties, and (b) That the suit is premature because the parties together with the Government are still engaged in discussions regarding the dispute between them. At the hearing of the preliminary objections Mr Kweka, learned advocate from the TLC for some of the defendants argued only the first ground of objection and either advertently or inadvertently did not canvass the second ground of objection. In substance he said that the dispute between the parties is under the Mining Act Number 5 of 1998 and, therefore, the provisions of sections 101, and 103 apply. Section 101 provides that the Commissioner for Minerals may decide on disputes; section 102 provides that orders by the Commissioner may be sent to Civil Courts for enforcement and section 103 provides that persons aggrieved by a decision or order of the Commissioner may appeal to the High Court. So, argued Mr Kweka, the dispute between the parties should not have been taken to court in the first

264 TANZANIA LAW REPORTS[2002]T.L.R. A instance but to the Commissioner for Minerals and would be taken to the High Court only if either of the parties was aggrieved by the decision or order of the Commissioner. Relying on the Court of Appeal decision in the case of Attorney General v. Lohay Akonaay B and Joseph Lohay (1), he submitted that once the Legislature establishes a special tribunal to deal with a dispute, resort has to be had to that tribunal first and then go to the law Courts only as a final resort. Of course, the Lohay Akonaay case is authority that legislation c cannot prohibit access to the courts of law and any legislation which excludes the jurisdiction of the courts of law would be unconstitutional. Secondly, it says that where a special tribunal is created proceedings may be instituted in such tribunal but may also be instituted in the D law Courts “ although such Courts would not normally entertain a matter for which a special forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum ” . E If Mr Kweka is right that the dispute in the suit comes under the Mining Act 1998, it would not mean that the High Court has no jurisdiction in the matter. What it would mean is that before the High Court takes cognizance of the case the plaintiff would have to satisfy that F Court first that “ no appropriate remedy ” would be available from the Commissioner for Mines. But the question here is whether Mr Kweka is right in saying that the dispute between the parties comes squarely under the Mining Act 1998. G With respect, Mr Kweka is not right. The Mining Act 1998 speaks for itself. It is an Act to make provision(s) for prospecting minerals, mining and dealing in minerals “ and to provide for any other relevant matters ” . By “ relevant matters ” I read it to mean matters which are H incidental to the principal objective of the Act. The principal objectives of the Act include the control of minerals, the authority required for prospecting or mining, mineral rights restrictions on grant of mineral rights, priority between ampeting 1 applications, to provide for offences relating to unauthorized trading

ARUSHA INTERNATIONAL CONFERENCE CENTRE v ___________________________ EDWIN WILLIAM SHE I TO ____________________ ; 205 of minerals, the administration of the Act different kinds of licences grantable under the Act and the registration of mineral rights. (See the list of contents in the Act). The Act does not deal with the granting of land on or in which minerals can be found and mined. The granting of such land, its occupation and use come under the provisions of the Land Ordinance Chapter 113 of the Revised Laws. Disputes relating to the granting of the right to occupy and the use of such land do not necessarily come under the provisions of the Mining Act 1998 . The plaintiff claims that its right to exclusive occupation and use of the suit land acquired under the Right of Occupancy have been violated by persons it calls trespassers, hence the reliefs sought from this Court. Sections 101, 102 and 103 of the Mining Act 1998 are not relevant here. For the above reasons the preliminary objection canvassed by Mr Kweka is without basis and is overruled. The plaintiff to get its costs in any event, to be taxed. ARUSHA INTERNATIONAL CONFERENCE CENTRE v. EDWIN WILLIAM SHETTO COURT OF APPEAL OF TANZANIA ATARUSHA (Lugakingira, J. A.) CIVIL APPLICATION No. 69 OF 1998 (Application for Stay of Execution of the decision of the High Court of Tanzania at Arusha, Mroso, J., in Civil Appeal No. 3 of 1997) Civil Practice and Procedure - Application for stay of execution - Principles tc take into account when considering such application.