Mobrama Gold Corporations Ltd vs Attorney General and Another (Misc. Civil Cause No. 42 of 1995) [1999] TZHC 68 (19 February 1999)

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 42 OF 1995 VERSUS ATTORNEY GENERAL & ANOTHER .................... RESPONDENTS RULING Mapigano, J: In April 1991 the Applicant Corporation herein after referred to as "MOBRAMA" happened to apply to the Government for a prospecting licence ·over the area formerly licenced to OTT/ STAMICO in the Tarime 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 partie•s, lrt terms of section 15 of the Mining Act, 1979. The srud Agreement was executed on August 5, 1994, the first Respondent, herein after called "the Minister'', subscribing to the document on behalf of the Government.

J. 2 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, dated September 6 1 1994, herein after called PL 217 /94, conferred on MOBRAMA "the sole and exclusive right to prospect in the said prospecting area for gold and to carry on such operations and execute such works as are necessary for the purpose". It was however stipulated in Annexture "A" to the PL that all

• ;::laims registered under or pursuant to section 74 of the Act, and Gold Small Scale Mining Blocks "TR l" and "TR2" were to be excluded from the licence area. MOBRAMA were aggrieved by the exclusi~!l gf_TRl" and "TR2", and it is noteworthy that the two blocks have been described by them as the crown jewels of the area. They made vain protestations to the Minister, asserting that the exclusion of the two small scale blocks went against the Agreement. By his letter to MOBRAMA dated May 16, 1995, the Commissioner, on behalf of the Minister, reiterated the Government stand that the blocks were excluded from their licence area. And by his letter dated August 29, 1995 the Minister informed MOBRAMA that he intended to validate the claim titles of the small scale miners who were operating in the two blocks. Indeed on June 6, 1996 the Minister issued Prospecting Licence, No. 388 of 1996, herein after called PL 388/96, to six persons over "TRl" and "TR2", and that PL was on June 18, 1996 assigned to M/s East African Gold Mines Limited, with the approval of the Minister. Thereter EasrAfrican Gold Mines Limited, which later crune to change its name to "Afrika Mashariki Gold Mines Limited", a rather puzzling change, obtained a Mining Licence, No. 18 of 1996 (ML 18/96) over the area covered by PL 388/96. Afrika Mashariki is herein below referred to as "the Intervenor".

I 3 In the meantime MOBRAMA had initiated legal proceedings. On their behalf, Messrs. Maajar, Rwechungura and Kameja, learned advocates, took out a chamber summons on September 15, 1995, seeking leave to apply for prerogative reliefs. There was an affidavit made by Mr. John Nugent in support of the appllcation. For the Attorney General, the fourth Responclent;·Mr. Werema, learned state ....... c}.,ttorney, raised an objection as to the jurisdiction 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 the 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 accordance 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 change of conspiracy about it. But my short comments upon this is that the parties don't seen to have given due thought to the legality and practicability of invoking the jurisdiction of the stipulated arbitral 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 t<f> refer had ceased to be executory. MOBRAMA filed the substantive application on April 17, 1997, along with Mr. Roman Shklanka's supporting affidavit.

4 At that point the Intervenor came along, determined 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 MOBRAMA, but after due consideration of the arguments of counsel on both sides the Court granted the application and the Intervenor was then joined. It has engaged the services of Mkono and Company, Advocates, and Mr. Hayes, QC. came from afar to recapitulate its arguments. '- 1 That is the;condensed account of the train of the material events respecting this case. I will start with what appears to me to be essentially preliminary but substantial questions of law some of which were not embodied in the list .of 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 both sides refreshing and enlightening. The first' point raised by Mr. Werema is that the Agreement is subject to private law and that therefore the case is not amenable to prerogative orders. Mr. Werema points out that the main contract concerns "commercial" obligations of the parties, while the collateral contract contains -the obligation to resolve, by arbitration, any dispute arising from the contractual rights and duties of the parties. Mr. Werema's use of the word "commercial" is open to question, if one takes that w0rd to mean something pertaining to or connected with trade or interchange of commodities between individuals or countries, as I do. But it matters for little. Mr. Werema maintains that by agreeing to submit disputes to arbitration, the Government effectively waived its sovereignty and the relationship between the /parties fell in the domain of private law. The decision of the House

5 of Lords in Brem.er Vulkan Schiffbau Und Maschinenfabrik v. South India Shipping Corporation Ltd, [1981] 2 WR 141, is cited by learned counsel. 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 f . ·,.- 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 cases 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 Government 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 law involved, and this formulation is drawn from the decision in Regina 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 ~!l, 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 Vulkan case, I should candidly confess my failure to see how that case can support the proposition put forward by Captain Kameja. As appears from the headnote, under consideration

y ,,·,· ,<·. 6 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. Captain Kameja is, in my opinion, right in saying that prerogative orders can be granted in cases of contractual relationship if there is an element of public ·- av-i involved, and I think this is such a case. The comparison between this case and the Right of Occupancy cases is appropriate. Having sat on this Bench for upwards of two decades I know for a fact that cases ·or such land rights holders seeking the prerogative reliefs have until recently constituted the majority of the cases in respect of which this court has exercised its supervisory jurisdiction. Accordingly, I am brought to the conclusion that MOBRAMA's application is amenable to the prerogative orders. The next pr:eliminruy matters for consideration are whether MOBRAMA have oroperly obtained the leave of the Court to institute the proceedings; and whether '-the application as it concerns the order of certiorari to quash PL 388/96. Is out of the 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 before, MOBRAMA brought the application for leave to apply for the orders on September 15, 1995. They sought two orders of declaration, on order of certiorari, and one order of mandamus. The orders.of declaration and certiorari related to "TRI" and "TR2", and mandamus was sought to "phohibit the Minister from issuing further claims or iicences that cpnflict with the Agreement". As also mentioned, on April 2, 1997,

7 after the order for stay had been discharged, the court granted the application. In the substantive chamber summons taken out on April 17, 1997, MOBRAMA seek a single order of certiorari, mandamus and prohibition Certiorari is sought to·quash {a) the decision contained in the Commissioner's letter dated May 16, 1995 introducing "TRl" and "TR2" into PL 217 /94 and the issue of claims in respect thereof; and (b) the 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 I ·...., the approval of the transfer 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 or cancel PL 388/96. And an order of prohibition is sought to prevent the Minister from further issuing or renewing 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 declaration is an ordinary relief sought in an ord_i_nary action, and that in our legal system prerogative orders cannot be sought alongside or alternatively to ordin~ -emedies,. which is precisely what Dr. Kapinga for the Intervenor has observed in his submission. In part, 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 should have withheld leavr!'~_.,it1!2!!!/ such objection being taken. Secondly, that certiorari sought in the substantive cause has been extended to PL 388/96. Thirdly, that the effect of the order of mandamus sought in the substantive cause would prima fade differ from the orde"f of mandamus in respect of which the summons for leave was taken out. Because whereas in the preliminary proceedings leave was sought to "prohibit" the Minister by mandamus

·--··----··-··--·-·--- ... I 8 from issuing further claims or licences that conflict with the Agreement, mandamus is sought in the main cause to "commend" the Minister to withdraw or cancel all claims issued in respect of the disputed area. Here, too, the Attorney- General and the Court are partly to blame. As Dr. Kapinga rightly points out,· mandamus is not available for the ·purpose contemplated in the preliminary chamber summons. And fourthly, that prima facie prohibition was not a subject of that summons. '- Dr. Kapinga makes the submission that the expansion of the subject-matter for certiorari, the departure or deviation made in respect of mandamus, and the prayer for prohibition, have been made by MOBRAMA without proper leave 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 MOBRAMA cannot make the. prayer for certiorari to extend to PL 388/96 and al_ter..~r modify the subject-matter in respect of mandamus in the way they have done without seeking and obtaining , __ leave of Court to amend the pleadings .. And counsel observes that the period prescribed by statute for doing so has expired already . . Somewhat relatedly, Dr. Kapinga argues that the orders of certiorari and mandamus are, to the extent that they concern the issue of claims, misconceived, this reason being that it is not the function of the Minister, to whom the orders are intended to b.e directed, to issue such claims. Reference is made to Part IV of the Act and the claims Regulation of 1980. Captain Kameja holds the opposite view. He starts his submission by describing the arguments put forward by Dr. Kapinga as academic. He says that

9 Dr. Kapinga has accorded undue significance to the form and wording of the application rather than to the substance thereof. Enlarging his point, Captain Kameja goes on to submit on the following line~: ·- -· First, that in granting leave to apply for the orders this Court did not direct that Mr. Nugent's Statement which attended the preliminary chamber su_mmons should be reproduced verbatim. Secondly, that the Statement which accompanies the substanti:ve chamber summons does not substantially differ from Nugent's Statement. Third, that the 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 "TR 1" and "TR2" from the PL 217 /94 area. and prohibiting the Minister from issuing or renewing claims or prospecting l!icences in respect of the area in dispute. Fourth, that the "hub" of the dispute in this cause is the exclusion by the Minister of "TRl" and "TR2" from the PL 217-/94-·-atea and the grant by the Commissioner of Claims A - Kover the area. Everything else, such as the grant and transfer of PL 388/96 and the eventual grant of ML 18/96, derives from and revolves around the acts of the two Respondents. Fifth, that in the event of a finding by this Court that the exclusion of "TRl" and "TR2" from the PL 217 /94 area was ultra vires the Agreement and the Act and that the grants of the Claims A - K were invalid, it won't make a material difference if the specific reference made in the substantive application to PL 388/96 is adjudged offensive, for an order quashing the decision to grant the Claims would automatically render that PL invalid. I have taken time to consider the matters. I have come to the conclusion that Captain Karneja's contention is sound. I respectfully agree with him that

J 10 Claims A - Kand PL 388/96 stand or fall together. Indeed, Mr. Mwita seems to acknowledge such eventuality in his affidavit, if implicitly. It is deponed therein that "ML 18/96 is derived directly from the cgnyr.sion and amalgamation of Claims A - K into PL 388/96". · As already demonstrated, there was no specific prayer for a prohibition order in the preliminary application. But reading the terms of the mandamus order proposed in Mr. Nugent's Statement, it is obvious that the word mandamus f '-r ~ ina. I think that what was actually intended was, an order of prohibition, and I accept the argument that this misnomer should not, per se, 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 MOBRAMA's pleadings, that leave has been properly obtained, and that the application as it concerns 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) of the Act. Since the PL was 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. But the Agreement embodied provisions for occurrences of Force Majeure, which, incidentally, is an expression taken from the Code Napoleon. Sub-Article (1) of Article 25 provides: "Any non-performance or delay in performance by any party hereto of any obligations under this Agreement...shall, except for the monies due under this Agreement, be excused if and to the extent

l l . that such non-performance or delay is caused by Force Majeure as defined in this Article". Sub-Article (2) provides a wordy definition of that term, and it is provided in Sub• Article (4) that: "Where (MOB RAMA) is prevented from exercising . .any rights or performing obligations under this Agreement due to Force Majeure such additional period as ....._ rliay be necessary in the circumstances shall be added to the time allowed under this Agreement for the performance of such obligation and or the exercise of any right dependent thereon". Jnder sub-Article 3(a) MOBRAMA could at its discretion claim suspension of its operations on 1 ccount of Force M'ajeure, and this provision corresponds with Clause 2.1 of the PL. By a letter dated July 3, 1996 MOBRAMA declared Force Majeure pursuant to Article 25, ,n account of the exclusion of "TR l" and "TR2" from the PL 217 /94 area, contending that they Nere unable to perform their obligations under the Agreement because their work programme :ontemplated in the first phase of the Agreement was primarily focused on "TR 1". _ The two questions framed as Issues 5 and 6 area (a) whether iri providing for suspension ror Force Majeure PL 217 /94 is ultra vires the Agreement 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 tigreement when it i.s abundantly clear that all that is provided therein is a reference to what the greement embodies. In my opinion, Issue 5 should be amnded to read: whether Clause 2.1 of PL 217 /94 and Article 25 of the Agreement are ultra vires the Act in providing for or alluding to suspension for Force Majeure in the way they do. Dr. Kapinga would have this Court answer "yes" to the two questions posed.

..,. 12 He points out that section 15 of the Act enabled the Minster to enter into an agreement with MOBRAMA, not inconsistent with the Act, in respect of the matters set out in that section. He also points out that in essence section 36 of the Act provides for suspension of contractual obligations where circumstances demand it . It is the burden of Dr. Kapinga's argument that the provisions of Article 25 of the Agreement and Clause 2.1 ofthe PL are inconsistent with the sub-section, because, he says, the Minister's powers to suspend under the said· sub-section are discretionary and exercisable only upon an application duly made tb him by the PL holder; whereas under the Article the non-performance of any obligation resting upon MOBRAMA under the Agreement, or the delay in performance of the same, is automatically excused if and to the extent that such non-performance or delay is caused by Force Majeure, and if the PL holder duly notifies the Minister of the occurrence of the event. Dr. Kapinga also submits that to the extent that the Agreement and PL 217 /94 are inconsistent with the Act, they are invalid; and that since, in his opinion, the Force Majeure stipulations in the Agreement and the PL were fundamental, the whole Agreement and PL are v_oiq. _ He concludes his submission by contending that since MOBRAMA cannot plead the Force Majeure provisions, PL 217 /94 upon which this application is founded must be deemed to have expired on September 5, 1998, and that there is thus no basis whatever upon which the prerogative orders can issue. But I ask myself: if1 as Dr. Kapinga says, the PL is really void, now can it be said to have expired? 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 Minister from making an agreement with a prerogative holder of a

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l 13 . . . which the latter may be excused from carrying out PL on the circumstances under h ht Article 25 "augments" section . C 1 aJso contends that t oug his obligat1ons. ounse . . . h ·t ln answer to a question I put to Mrs. . . however inconsistent wit l . 36(2), it is not,_ . '' l d colle.:,aue she conceded without any perceptible M ""iar Captam KameJa s ea.me '-'O ' .,J • ·ct d in Article 25 were hesitation that the Force Majeure provisions prov1 e fundamental and vital to the Agreement. 1 have carefully read the provision of section 36(2), which is in the following I ,...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 1 (b) (d) or (e) either conditionally or unconditionally." By sub-section {ll (b) the registered holder of such a licence shall carry on prospecting operations in accordance with his programme. Though it does not say so in terms, section 36(2) seems to me to cover or contemplate Force Majeure ituations. Section 15 of the Act imperatively requires that an agreement made under that section should not be inconsistent with the provisions of the Act. l 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 section 36(2). That Article virtually takes away the discretion given to the Minister under the section. As aforementioned, Captain Kameja urges the point that the Article •augments" the· section. That is a valid point, but that is preciely why the Agreement is being impeached. In common pariarice to augment means to increase, to make larger or greater, or to extend. Captain Kameja's proposition

i 14 therefore vitiates his argument. That being the case, it is impossible, in my opinion, to avoid the conclusion that Article 25 derogates from the Act, which is another way of saying that it is inconsistent with the Act. But on my part I cannot go further and subscribe to the view that that by itself makes the whole Agreement void. l think Article 25 is severable and could be struck out and leave MOBRAMA to fall back on section 3~ (2). Unfortunately, however, that cannot afford any succour to MOBRAMA, .... since they cannot plead Article 25 therein PL 217/94 has indeed expired. The same with the Agreement itself, by virtue of Article3 (2). I so hold . Accordingly, as Dr. Kapinga has put it, there is no basis upon which the prerogative orders can be gr9.1lted. That finding really disposes of this application, but I should not leave this case without expressing my opinions briefly on one or two matters to which the greater parts of counsel's ingenious submissions have been directed. There has been great controversy as to whether the exclusion of "TRl" and -. 1 TR2" from the PL 217 /94 area is ultra vires the Act and the Agreement, and the primary question which poses is whether the Agreement is to be read subject to the Commissioner's letter of Offer of August 16, l.99.l ,. It was pointed out in that letter that: "There could be a few claim holders operating in the area allocated to you. ~he areas concerned will be identified and excluded from your licence area". It is common ground that the Minister's power to grant a PL derives from section 28 of the Act, and that that power is subject to a section 15 agreement. In so far

/ IS as it is relevant section 15 provides as fol1ows: "15. The Minister on behalf of the United Republic may enter into an agreement (not inconsistent with this Act) with any person with respect to all or any of the following matters, namely · (a) the grant to that person, or to any person identified in the agreement, on conditions (if any) spedfieci in the agreement, ·...._, of a prospecting licence or a mining licence". Article 3( 1) of the Agreement conferred upon MOBRAMA, subject to the Act and the terms and conditions set out therein; "the sole and exclusive right" to undertake gold operations on, in and beneath the Contract Area. Under Article 1 the Contract Area was defined as being the area covered by the Agreement and describe in Annexture "A" to the Agreement, which description did not exclude ll!Rl" and "TR2". Article 3 (3) (a) enjoined the Minister to grant to MOBRAMA a PL to carry on prospecting operations for gold over the Contract Area. Mr. Ka.meja makes the specious argument that by agreeing on those terms and conditions, the '- tinister must be taken to have abandoned the intention to exclude any unregistered small claim area. Mr. Kameja also conte'nds that the Agreement was the embodiment of the terms and conditions agreed between MOBRAMA and the Minister; that a negotiated agreement does not necessarily contain or reflect all the terms and conditions of the initial offer pursuant to which the negotiations are conducted; that when an agreement is entered into following negotiations, even where such negotiations are pursuant to a letter of Offer, the governing terms and conditions are those reduced into writing in the signed agreement; that the terms of the letter of Offer would be relevant only to the extent that they are incorporated in the

-·--- I / 16 . . . ' . , >: ;the instant case the signed agreement ag reement especially in cases where, as 1.n . ' . t' ' . . . ements commumca ions 1 ·ctes that it supersedes all previous agre ' . express Y provi r th atter to , 1 would agree, but there is another aspect o e m or representations. which consideration must be given. · D K i · Mr Werema and Mr. Hayes In their corresponding arguments, r. a.?mga, . · have put forth the proposition that the Ministe's discretion as to the precise area of land to be granted in a PL is not limited by:a section 15 agreement, and that . .._ otl1y the discretion under section 28 as to whotti a P~ will be granted and as to the conditions of the PL is limited. This is an argument l 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 determine, or refuse to grant, a prospecting licence over any area of land to which this Act applies. (2) The area of land over which a prospecting licence is granted shall be of such shape, orientation and dimensions as may be prescribed" (my underscoring) looking at those provisions closely, I think, in my judgment, that the reasonable inference to be 4(8.wn 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 d:mensions of the prospecting area is not subject to that section. Accordingly, the prescription otthe shape and dimensions of a PL area is not one of the matters which can be the subject of <1.Section 15 agreement. In point of fact, if one holds that a PL area is one of the conditions referred. to in subsection ), one wo_uld be rendering the provision of subsection (2) a superfluity. The statute should be

--------------· I 17 lelnstrued as to give effect to the word uprescribe". · No doubt, that word carries it ordinary (bpular meaning, i..e., laying down with authority, which hardly means anything but that in the «ercise of that power the Minister has to act unilaterally and independently of a section 15 '°eement. It being imperative that the terms and condiHons of a section 15 agreement should rtll be in disharmony with the provisions of the Act, l would, therefore, come tot he conclusion !iiat the Agreement could not have disabled the Minister to exclude some pieces of land from the [217 /94 area. .._,..." Given the interpretation I have put on section 15 and 28 of the Act, it seems to me to follow that the validity or otherwise of "T.R l" 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. Delivered. Captain Kameja for Applicant. Mr. Ngwembe for Respondent. Dr. Kapinga for Interven~r. D. P. Mapigano JUDGE 19/02/1999