Mobrama Gold Corporation Ltd vs Attorney General and Another (Misc. Civil Application No. 42 of 1995) [1999] TZHC 138 (24 March 1999)

I IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CML CAUSE NO. 42 OF 1995 MOBRAMA GOLD CORPORAtN LTD........... OH ...•. APPLICANT VERSUS ATTORNEY GENERAL & ANOTHER .................... RESPONDENTS RULING l\fapigano, J: ✓ In April, 1991 the AppJicant Corporation herein after referred to ac; "MOBRAMA" happened to apply to the Government for a prospecting licence over the area formerly licenced to DTT/ST AMICO in the Taritne District. By a letter dated August 16, 1991 the third Respondent, the Commissioner for Mineral Resources, offered MOBRAMA three blocks in that area, which offer was accepted by MOBRAMA vide their letter dated September 3, 1991. However, since the blocks were still the subject of arbitration proceedings between the Government and DTT, no further steps were taken with regard to the accepted offer. Upon the conclusion of the arbitral proceedings in favour of the Government in 1994, MOBRAMA deemed it appropriate to "re-submit" their application, and the negotiations which followed culminated in the Gold Exploration and Development Agreement between the two parties, in terms of section 15 of the Mining Act, 1979. The said Agreement was executed on August 5, 1994, the first Respondent, herein after called ''the !v[inister", subscribing to the document on behalf of the Government. Pursuant to Article 3(3) (a) of the Agreement, and in the exercise of the power vested in him under section 28 of the Act, the Minister issued to MOBRAMA a Prospecting License, No. 217 of 1994, over the Contract Area. The Prospecting Licence,

r-.,;, 2 I I dated September 6, 1994, herein after called PL 217/94, conferr:ed on MOBRAMA "the ! sole and exclusive right to prospect in the sajd prospecting area for gold and to carry on such operations and execute such works as are necessary for the !purpose". It was however i stipulated in Annexture "A" to the PL that all claims registered μnder or pursuant to I section 74 of the Act and Gold Small Scale Mining Blocks "TRI" and "TR2" were to be , I excluded from the licence area. I MOBRAMA were aggrieved by the excluion of"TRI" h.nd "TR2", a.nd it is noteworthy that the two blocks have been described by them as e crown jewels of the I area. They made vain protestations to the Minister, asserting tht the exclusion of the two small scale blocks went against the Agreement. By his letter to jMOBRAMA dated May 16, 1995, the Commissioner, ori behalf of the Minister, reiteratdd the Government stand that the blocks were excluded from their ticence area. And by + letter dated August 29, 1995 the Minister informed MOBRAMA that he intended to validate the claim titles of I the small scale miners who were operating in the two blocks. I • . I . Indeed on June 6, 1996 the Minister issued Prospecting Licence, No. 388 of 1996, I . herein after called PL 388/96, to six persons over "TRI" and "TR2", and that PL was on I June 18, 1996 assigned to Mis East African Gold Mines Limite, with the approval of the Minister. Thereafter East African Gold Mines Limited, which later came to change its name to "Afrika Mashariki Gold Mines Limited", a rather pudling change, obtained a Mining Licence, No. 18 of 1996 (ML 18/96) over the area covred by PL 388/96. Afrika I Mashariki is herein below referred to as "the Intervenor". In the meantime MOBRAMA had initiated legal prcee4ings. On their behalf, Messrs Maajar, Rwechungura and Kameja, learned advocates, iook out a chamber I summons on September 15, 1995, seeking leave to apply for pr~ogative reliefs. There . ' i i '

.. - 3 was an affidavit made by Mr. John Nugent in support of the application. For the Attorney General, the fourth Respondent, Mr. Werema, learned state attorney, raised an objection as to the jrisdiction of this Court to entertain that application. His objection had reference to Article 27 of the Agreement. Typical of such agreements it was expressly provided under that Article that all future differences or ------' disputes between 1~ parties arising under and concerning the Agreement should be submitted to arbitration, if negotiations. yielded no settlement The Court sustained the objection on December 8, 1995, and an order was made, in accdrdance with section 6 of the Arbitration Ordinance, Cap.15, that the application be stayed until arbitration has been had. It turned out to be a waste of time. Arbitration was never initiated and there has been an exchange of blames and a charge of conspiracy about it But my short comments upon this is that the parties don't seem to have given due thought to the legality and practicability of invoking the jurisdiction of the stipu]ated arbitra] tribunal; and that it is pointless to decide who should bear the blame. Pursuant to an uncontested chamber application brought by MOBRAMA the stay order was vacated on April 2, 1997, and there could be no doubt that the agreement to refer had ceased to be executory. MOBRAMA filed the substantive application on April 17, 1997, along with Mr. Roman Shklanka's supporting affidavit. At that point the Intervenor came along, determine~ to enter the fray. It took out a chamber summons supported by an affidavit sworn by Mr. Josephat Muniko Mwita, seeking an order for its joinder as a party to the proceedings. The application was strongly resisted by MO BRAM~ but after due consideration of the arguments of counsel on both

.,; - 4 I sides the Court granted the application and the Intervenor was en joined. It has engaged ' . i the services of Mkono and Company, Advocates, and Mr. Hays, QC. came from afar to recapitulate its arguments. i I That is the condensed account of the train of the material events respecting this

• I . . case. 1 _ I will start with what appears to me to be essentially preliminary but substantial questions oflaw, some of which were not embodied in the list o~ issues which counsel have framed, perhaps inadvertently. They concern the entertainability of the application. They are ticklish matters, but let me say that I have found the able and clear arguments on I both sides refreshing and enlightening. The first point raised by Mr. ~ 1 erema is that the Agreemfllt is subject to private law and that therefore the case is not amenable to prerogative orders. Ivir. Werema points out that the main contract concerns "commercial" obligations of thJ parties, while the collateral coqtract contains the obligation to resolve, by arbitration, any dispute arising from the contractual rights and duties of the parties. Mr. werenia's use of the word "commercial" is open to question, if one takes that word to meah something pertaining to or connected with trade or interchange of commodities between:individuals or countries, as I do. But it matters for jitt)e. Mr. W erema maintains that b~ agreeing to submit disputes to arbitration, the Government effectively waived its sdvereignty and the I relationship between the parties fell in the domain of private law. The decision oft.he House of Lords in Bremer Vulkan Schiflbau Und Maschinenfabrik. v. South India Ship_ping Corporation Ltd, [1981] 2 WR 141, is cited by leame~ counsel. ! I

5 For MOBRAMA Captain Kameja takes the view that the proceedings in this case are not proceedings against the Government for breach of contract. Nor are they proceedings against the second and third Respondents who are not even parties to the Agreement. They are, he says, proceedings against the :Minister and the Commissioner for wrongs committed against MOBRAMA by the two Respondents as public officials in the performance of public duties imposed upon them by statute. Captain Kameja. also urges the point that there may be ca')es where an apparently private transaction involves elements of public law. He instances the case of a person's rights under a Right of Occupancy granted under the Land Ordinance, Cap. 212. Such right, he contends, is essentially a contract between an individual and the Government. If those rights are revoked by the Govennnent the individual holder, depending on the circumstances of the revocation, can come to the High Court to seek prerogative remedies. In sum, Captain Kameja's contention is that prerogative orders can be issued in cases of contractual relationship if there is an element of public iaw involved, and this formulation is drawn from the decision in Regjna v Barnsley Council, [1976] WLR 1052. I incline to the view that this is not an action against the Government qua party to the Agreement. It is basically a case against the Minister and the Commissioner for wrongs allegedly committed by them in the discharge of their statutory functions. Judicial review can thus be had. Having read the opinions stated in the speeches of the Law Lords in the Bremer Vu!kan case, I should candidly confess my failure to see how that case can supp01t the proposition put forward by Mr W erema. As appears from the headnote, under consideration by the House in that case was, whether the court below had jurisdiction to restrain a dilatory claimant, by injunction, from continuing with an arbitration after he has been guilty of such inordinate and inexcusable delay that a fair arbitration was no longer possible. The House answered the question in the affirmative.

6 Captain Kameja is, in my opinion, right in saying that prerogative orders can be granted in cases of contractual relationship if there is an elemebt of public Jaw involved, i and I think this is such a case. The comparison between this ce and the Right of Occupancy cases is appropriate. Having sat on this Bench for hpwards of two decades I know for a fact that cases of such land rights holders seeking Je prerogative reliefs have . I until recently constituted the majority of the cases in respect ofiwhich this court has exercised its supervisory jurisdiction. Accordingly, I am brought to the conclusion that MOB amenable to the prerogative orders. , I A's application is The next preliminary matters for consideration are wl,e!er MOBRAMA have properly obtained the leave of the Court to intute the proceedings; and whether the application as it concerns the order of certiorari to quash PL 3J8/96. is out of the I . I prescribed time. These matters have reference to Issues 7 and 8, and they can conveniently be taken together. First, the history of the proceedings. As shown herein b I fore, MOBRAMA brought· the application for leave to apply for the orders on September 1ls, 1995. They sought two orders of declaration, one order of certiorari, and one order of andamus. The orders of declaration and certiorari related to "TRI" and "TR2", and madamus was sought to "prohibit the Minister from issuing further claims or licences Jat conflict with the Agreement". As also mentioned, on April 2, 1997, after the orber for stay had been discharged, the court granted the application. • I In the substantive chamber summons taken out on Aprill 17, 1997, MOBRAMA seek a single order of certiorari, mandamus and prohibition Certiorari is sought to quash i .. 1.

7 (a) the decision contained in the Commissioner's letter dated·Mly 16, 1995 introducing "TR 1" and "TR2" into PL 217/94 and the issue of claims in respect thereof; and (b) the I decision made on or about June 13, 1996 to issue PL 388/96 in:the names of the six persons in respect of the area in dispute, and the approval of the ansfer of the said PL to the Intervenor. Mandamus is sought to command the Minister to withdraw or cancel all claims issued in respect of the disputed area, and to withdraw o) cancel PL 388/96. And an order of prohibition is sought to prevent the Minister from further issuing or renewing I claims or prospecting licences in respect of the area. It is to be noticed, first, that the order of declaration is not pursued by MOBRAMA in the main cause. This I think is upon a realization that declarJtion is an ordinary relief sought in an ordinary action, and that in our legal system prerogative orders cannot be ! sought alongside or alternatively to ordinary remedies, which is ·precisely what Dr. Kapinga for the Intervenor has observed in his submission. In p though, the Attorney General and this Court cannot escape criticism. The Attorney General should have taken objection to the grant. of leave in that respect, and the Court shoJ]d have withheld leave \ even without such objection being taken. Secondly, that certiorari sought in the substantive cause ias been extended to PL 388/96. Thirdly, that the effect of the order of mandamus sougl?.t in the substantive cause I . would prima facie differ from the order of mandamus in respect!ofwhich the summons for leave was taken out. Because whereas in the preliminary procebdings leave was sought to ! "prohibit" the Minister by mandamus from issuing further claims or licences that conflict with the Agreement, mandamus is sought in the main cause to "~ommand" the Minister to I withdraw or cancel all claims issued in respect oft11e disputed area. Here, too, the Attorney- General and the Court are partly to blame. As Dr. KJpinga rightly points out, mandamus is not available for the purpose contemplated in the preliminary chamber I

• ! ,,. 8 . summons. And fourthly, that prima facie prohibition was not a kubject of that summons. Dr. Kapinga makes the submission that the expansion ofif:he subject-matter for certiorari, the departure or deviation made in respect of man&..Jus, and the prayer for prohibitio~ have been made by MOB RAMA without proper lelve of the Court and that this amounts to an abuse of the court's process. Dr. Kapinga therefore urges this Court to exercise its discretion against MOBRAMA I also understand Dr. Kapinga to submit that MOBRAMv\ cannot make the prayer I for certiorari to extend to PL 3 88/96 and alter or modify the subject-matter in respect of I i mandamus in the way they have done without seeking and obtaining leave of Court to amend the pleadings. And counsel observes that the period pres~ribed by statute for doing so has expired already. I Somewhat relatedly, Dr. Kapinga argues that the orders t certiorari and mandamus are, to the extent that they concern the issue of cJaiJs, misconceived, his I reason being that it is not the function of the Minister, to whom the orders are intended to be directed, to issue such claims. Reference is made to Part IV bf the Act and the Claims Regulations of 1980. Captain Kameja holds the opposite view. He starts his slbmission by describing the arguments put forward by Dr. Kapinga as academic. He sats that Dr. Kapinga has accorded undue significance to the form and wording of the apJ,ication rather than to the substance thereof. Enlarging his point, Captain Kameja goes on to submit ori the following lines. First, that in granting leave to apply for the orders this C urt did not direct that Mr.

9 Nugents Statement which attended the preliminary chamber summons should be reproduced verbatim. Second, that the Statement which accomJanies the substantive i chamber summons does not substantially differ from Nugent's Statement. Third, that the i reliefs prayed in the substantive application are substantially similar to the ones set out in ! the preliminary application, which are the quashing of the Minister's decision to exclude "TRI" and "TR2" from the PL 217/94 area and prohibiting the/Minister from issuing or renewing claims or prospecting licences in respect of the area in'. dispute. ! Fourth, that the "hub" of the dispute in this cause is the ekclusion by the Minister of "TRl" and "TR2" from the PL 217 /94 area and the grant by the Commissioner of Claims A- Kover the area. Everything else, such as the grant and tratrlfer of PL 388/96 and the ! eventual grant of ML 18/96, derives from and revolves around tl1e acts of the two . , . Respondents. F~ that in the event of a finding by this Court that the exclusion of "TRI" and . . I "TR.2" from the PL 217 /94 area wac; ultra Vlres the Agreement and the Act and that the grants of the Clainls A- K were invalid, it won't make a materi~l difference if the specific reference made in the substantive application to PL 388/96 is judged offensive, for an order quashing the decision to grant the Claims would automatially render that PL invalid. I I i I have taken time to consider the matters. I have come td the conclusion that I Captain Kameja' s contention is sound. I respectfully agree witli him that Claims A - K and PL 388/96 stand or fall together. Indeed, Mr. Mwita seems:to acknowledge such eventuality in his affidavit, if implicitly. It is deponed therein tlJat "ML 18/96 is derived directly from the conversion and amalgan1ation of Claims A- K; into PL 388/96". I I

.10 I As already demonstrated, there was no specific prayer fro a prohibition order in the preliminary application. But reading the tenns of the mandamu~ order proposed in Mr. I . Nugent's Statement, it is obvious that the word mandamus was inapt. I think that what was actually intended was an order of prohibition, and I accept ie argument that this I misnomer should not, perse, be considered to be a good ground for refusing to entertain the prayer for the order of prohibition. Accordingly, I hold that there is nothing fatal about MO : RAM:A's pleadings, that leave has been properly obtained, and that the applicatioo as it fncems the order of certiorari is not time-barred. PL 217/94 was to subsist for a period not exceeding three years, which is consistent with the provision of section 33(1) ofthe Act. Since the PL wac;/ granted on September 6, 1994 and the period started to run from that day by virtue of the provision of section 33(2), it was to expire on September 5, 1998. I But the Agreement embodied provisions for occun-ences bf Force Majeure, which, incidentally, is an expression taken from the Code Napoieon. shh-Article (1) of Article 25 provides: "Any noo-perfonnance or delay in performance by any ~ hereto of any obligations under this Agreement shall, except for ~e monies due under this Agreement, be excused if and to the extent thlt such non- I performance or delay is caused by Force Majeure as defmed in this I Article".

1,1 Sub-Article (2) provides a wordy definition of that te~ and it is provided in Sub-Article (4) that: i I "Where (MOBRAMA) is prevented from exercising anirights or performing obligations under this Agreement due to Forbe Majeure such additional period as may be necessary in the circumstanles shall be added to the time allowed-under this Agreement for the perfoJance of such obligation and or the exercise of any rig..ht dependent theeon''. . . I I Under sub-Article 3(a) MOBRAMA could at its discretionclaini suspension of its operations on account of Force Majeure, and this provision rrJsponds with Clause 2.1 of the PL. By a letter dated July 3, 1996 MOBRA1vfA declared For, e Majeure pursuant to . I Article 25, on account of the exclusion of "TRl" and "TR2" fro the PL 217/94 area, contending that they were unable to perform their obligations uner the Agreement I because their work programme contemplated in the first phase of the Agreement was · primarily focused on "TR 1 ". The two questions framed as Issues 5 and 6 area (a) whe ! er in providing for suspension for Force Majeure PL 217/94 is ultra vires the Agredment and the Act; and (b) whether that PL has expired. But I have been unable to see how the PL can be said to be ultra vires the Agreement when it is abundantly clear that all that is provided therein is a . . I reference to what the Agreement embodies. In my opinio~ Issu~ 5 should be amended to read: whether Clause 2.1 of PL 217/94 and Article 25 ofthe Jeement are ultra vires the Act in providing for or alluding to suspension for Force Maj~ure in the way they do.

\ I I 12 I I I I I i I I Dr. Kapinga would have this Court answer "yes" to the tw~ questions posed. He I points out that section 15 of the Act enabled the Minister to enter ihto an agreement with IvfOBRAMA, not inconsistent with the Act, in respect of the matteb set out in that section. I He also points out that in essence section 36 of the Act provides fo:r suspension of I contractual obligations where circumstances demand it. It is the burden of Dr. Kapinga's I argument that the provisions of Article 25 of the Agreement and qlause 2.1 of the PL are i inconsistent with the sub-section, because, he says, the Minister's powers to suspend under I the said sub-section are discretionary and exercisable only upon an application duly ma.de • I to him by the PL holder; whereas under the Article the non-perfoqnance of any obligation resting upon MOBRAMA under the Agreement, or the delay in prfonnance of the same, is automatically excused if and to t.'1e extent that such non-perfonhance or delay is. caused I by Force M:ajeure, and if the PL holder duly notifies the Minister :of the occurrence of the . I event. 1 I I Dr. Kapinga also submits that to the extent that the Agree¢ent and PL 217/94 are inconsistent with the Act, they are invalid; and tht since, in his opinion, the Force Majeure stipulations in the Agreement and the PL wer~ fundamental, the whole I Agreement and PL are void. 1 I i i He concludes his submission by contending that since MOBRAMA cannot plead . . I the Force Majeure provisions, PL 217/94 upon which this app)i~ation is founded must be deemed to have CA7Pired on September 5, 1998, and that there is ithus no basis whatever • I upon which the prerogative orders can issue. But I ask myself: if, as Dr. Kapinga says, the . I PL is really void, how can it be said to have expired? i I In his submission Captain Kameja asserts that there is nothing in the Act which ! prohibits the inclusion of a Force Majeure provision in a. PL, or!which prohibits the I

13 tvfinister from making an agreement with a prespective holder of a PL on the circumstances under which the latter may be excused from carrying out his obligations. Counsel also contends that though Article 25 "augments" section 36(2), it is not, however, inconsistent with it. In answer to a question I put to !virs. Maajar, Captain Kameja's learned colleague, she conceded without any perceptible hesitation that the Force Majeure provisions provided in Article 25 were fundamental and vital to the Agreement. I have carefully read the provision of section 36(2), which is in the following terms: "(2) The Minister may, on application made to him by the registered holder of a prospecting licence, limit, reduce, vary or suspend any obligation arising pursuant-to subsection l(b) (d) or (e) either conditionally or unconditionally." By sub-section ( 1) (b) the registered holder of such a licence shaH carry on prospecting operations in accordance with his programme. Though it does not say so in tenns, section 36(2) seems to me to cover or contemplate Force Majeure situations. Section 15 of the Act imperatively requires that an agreement made under that section should not be inconsistent with the provisions of the Act. I am disposed to say with Dr. Kapinga but not without some hesitation, that Article 25 of the Agreement is in certain material respects incompatible with secti_on 36(2). That Article virtually takes away the discretion given to the Minister under the section. As aforementioned, Captain Kameja urges the doing that the Article "augments" the section. That is a valid point, but that is precisely why the Agreement is being impeached. hi common parlance to augment means to increase, to make larger or greater, or to extend. Captain Kameja's proposition therefore vitiates his argument.

:14 That being the case, it is impossible, in my opinion, t◊ avbid the conclusion that Article 25 derogates from the Act, which is nother way of sayidg that it is inconsistent " I . with the Act. But on my part I cannot go further and subscribe tb the view that that by itself makes the whole Agreement void. I think Article 25 is:seerableand could be struck ., out and leave MOBRAMA to fall back on section 36 (2). Unfortunately, however, that cannotafford any succour to MOBRAMA Since . : I they cannot plead Article 25 their PL 217 /94 has indeed expired. The same with the Agreement itelf, by virtue of Article3 (2). Ii so hold . Accordinly, as Dr. Kapinga has ' ' put it, there is no basis upon which the prerokative orders can be 1 granted. That finding really disposes of this aPl'lication, but I shold not leave this case without expressing my opinions briefly on 01e or two matters to which the greater parts of counsel's ingenious submissions ha.ve been directed. j There has been great controversy as-~ whether the exclu ion of "TRI" and "TR2" from the PL 2 l 7/94 area is ultra vires the Af and the Agieem+ and the primary question which poses is whether the Agreemnt is to be read subject to the Commissioner's Letter of Offer of August 16, 1991. It was poJted out in that letter that: • , I ''There could be a few claim holders operating in 11ie arla allocated to you. The areas concerned will be ientified and exdud&i from your licence area". It is commcm ground that the Minister's power to grant a PL' djves from section 28 of the Act, and that that power is subject to a secti~n 15 agreement J so far as it is relevant section 15 provides as follows:

IJ I .. ,. i - • I j - .. I I I 15 I I I "15. The Minister on behalf of the United Republic may entr into an , I I agreement (not inconsistent with this Act) with any person Jith respect to . r j all or any of the following matters, namely - I t I 1 I '• (a) the grant to that person, or to anl person identified ~ the I I agreement, on conditions (if any) specified in th(? agreement, of a . . . :r : prospecting licence or a mining licence". I . . 'I ; Article 3(1) of the Agreement conferred upon 1v10BR.MfA, subject to the Act and the terms and coriditions set out therein; ''the sole id exclusive right" to undertake gold operations on, in and beneath the Contract Aret Under Article 1 the Contract Area was ' I , I I defined as being the area covered by the Agreeinent and described in Anne:xiure "A" to the ' I Agreement, which description did not exclude rTRl" and .. TR2". ,ArticJe 3 (3).(a.) enjoined the Minister to grant to MOBRAMA a PL to carry on prcispecting operations for gold over the Contract Area. ·captain KamejJ makes the speciouj argument that by agreeing on those.terms and conditions. the Minister must be takJ to have abandoned the • . I intention to exclude any unregistered small cIJim area. 1 j I . Captain Kameja also contends that the1Agreement was the /embodiment of the terms and conditions agreed between MOB RAMA kd the Minister; th t a negotiated agreement does not necessarily contain or reflect a11 the ienns and condition~ of the initial offer · pursuant to which the negotiations are condu6ted; that when an akeement is entered into . , I following negotiations, even where such negotiations are pursuant to a letter of Offer, the · governing tes and conditions are those reduced into writing in lhe signed agreement; . I that the tenns of the letter of Offer would be relevant only to the extent that they are incorporated in the agreement, especially in cases where, as in th instant c~e, the signed I agreement expressly provides that. it supersedes all previous agrdements, communications . I f I ,. .

.. 16 or representations. I would agree, but there is another aspect of the matter to which consideration must be given. In their corresponding arguments, Dr.Kapinga, Mr. \Verema and Mr. Hayes have put forth the proposition that the Minister's discretion as to the precise area ofland to be granted in a PL is not limited by a section 15 agreement, and that only the discretion under section 28 as to whom a PL will be granted and as to the conditions of the PL is limited. This is an argument I would respectfully accept. Section 28 provides: "28 (1) Subject to this Act and to any relevant agreement of a kind referred to in section 15, on application duly made, the Minister may grant on such conditions as he may detennine, or refuse to grant, a . prospecting licence over any area of land to which this Act applies. (2) The area ofland over which a prospecting licence is granied shall be of such shape, orientation and dimensions as may be prescribed" (my underscoring) · Looking at those provisions closely, I t~ in my judgment, that the reasonable inference to be drawn is that it is only subsection (1) which is envisaged to be subject to section 15, and that subsection (2) which provides for the powers of the Minister to prescribe the shape and dimensions of the prospecting area is not subject to that section. Accordingly, the prescription of the shape and dimensions of a PL area is not one of the matters which can be the subject of a section 15 agreement.

• .. . • - "' 17 • In point of fact, if one holds that a PL area is one of the conditions referred to in sebsection (1 ), one would be rendering the provision of subsection (2) a superfluity. The statute should be construed as to give effect to the word "prescribe". No doubt, that word carries its ordinary popular meaning, i.e, laying down with authority, which hardly means anything but that in the exercise of that power the Minister has to act unilaterally and independently of a section 15 agreement. It being imperative that the terms and conditions of a. section 15 a.rgreement should not be in disharmony with the provisions of the Act, I would, therefore, come to the conclusion that the Agreement could not have disabled the Minister to exclude some pieces of land from the PL 217/94 area. · Given the interpletation I have put on sections 15 and 28 of the Act, it seems to me to follow that the validity or otherwise of "TRl II and "TR2" counts for nothing. The same with the propriety or otherwise of the applications for the registration of Claims A- K, as well as the validity of their derivatives PL 388/96 and ML 18/96. In the final event my judgment is that MOBRAMA's application should be refused, that the Intervenor's PL 388/96 and ML 18/96 should in the circumstances prevail, and that costs should be awarded to the Respondents and the Intervenor. It is so ordered.

18 · -· Delivered. {~ •" Captain Kameja for Applicant. Mr. N gwembe for Respondent. Dr. Kapinga for Intervenor. ... ...... . Sgd: D. P. Mapigano JUDGE 19/02/1999 I Certify that this is a true copy of the original. _a. §,gtf.' F.s·Mshot SDR-HC 24/03/1999