General Manager African Barrick Gold Mine Ltd vs Chacha Kiguha & Others (Civil Appeal No. 99 of 2019) [2024] TZCA 469 (14 June 2024)

Key Facts

Issues

• The first issue concerns the jurisdiction of the High Court to entertain a claim for general damages exceeding the pecuniary limits typically reserved for Resident Magistrate's Court or District Court, as per the Civil Procedure Code and relevant case law.
• The appeal challenged the trial court's decision to address the approval of the valuation report by the Chief Government Valuer, which the appellant argued was not a formal issue raised at the trial's commencement.
• The court examined whether the appellant, as the holder of a Special Mining Licence, owed a duty of care to the respondents who remained on the affected land and whether its mining operations (including blasting and dust emissions) constituted a breach of that duty.
• This issue focused on linking the respiratory, ear, and skin diseases suffered by the respondents to the appellant's mining operations, particularly the explosive blasting and dust emissions, based on medical evidence and expert testimony.
• The court considered the validity of the valuation report for the affected land, its approval by the Chief Government Valuer, and whether the respondents' refusal to accept the compensation amount justified their continued occupation of the mining area.
• The final issue involved evaluating the reasonableness of the damages awarded by the trial court, particularly considering the lack of conclusive evidence linking the illnesses directly to the mining activities and the respondents' contributory negligence.

Holdings

• The court dismissed the first ground of appeal, finding that the error in filing the case in the High Court instead of the District Court did not prejudice the parties and was rendered redundant by the 2016 amendment to Section 13 of the CPC. The amendment allows such errors to not vitiate proceedings.
• The court dismissed the sixth and seventh grounds of appeal, ruling that the valuation report's approval by the Chief Government Valuer was irrelevant to the claim for general damages. The court emphasized no legal compulsion for occupants to accept approved compensation.
• The court dismissed the second ground of appeal, acknowledging that while the respondents' illnesses were not conclusively linked to the appellant's mining activities, the nuisance caused by blasting and dust established liability for general damages.
• The court upheld the duty of care owed by the appellant to the respondents, rejecting the argument that the respondents' unauthorized construction on the affected land absolved the appellant of liability. The court emphasized the neighbor principle and the appellant's obligation to avoid harm despite the respondents' breach of Section 96(2) of the Mining Act.
• The court reduced the awarded damages from TZS 300,000,000.00 to TZS 150,000,000.00, citing the respondents' contributory negligence in constructing a house on the affected land without consent. Each party was ordered to bear their own costs.
• The court ordered that each party bear their own costs, citing the respondents' contributory negligence in occupying the affected land and the appellant's breach of duty of care.

Remedies

• Each party was ordered to bear their own costs due to contributory negligence.
• The appellant was ordered to pay a total of TZS 150,000,000.00 in compensation to the respondents, with interest at 7% per annum from the date of the trial court's judgment.

Monetary Damages

Legal Principles

• The court found the appellant breached its duty of care by conducting mining activities, particularly explosive blasting, at a dangerously close distance to the respondents' house (50-100 meters) without ensuring their safety. The breach was linked to the emission of dust and noise, causing nuisance and health issues.
• The court applied the neighbor principle from Donoghue v. Stevenson [1932] AC 562, holding that the appellant owed a duty of care to the respondents despite their unauthorized construction on the mining area. This duty required the appellant to act reasonably to avoid harming the respondents through mining activities, including blasting explosives in close proximity to their residence.

Precedent Name

• Peter Joseph Kilibika and CRDB Bank Public Company Ltd v. Patrick Aloyce Mlingi
• Benitho Thadei Chengula v. Abdulahi Mohamed Ismail
• Guardian Limited and Another v. Justin Nyari
• Abualy Alibhai Aziz v. Bhatia Brothers Ltd
• Tanzania-China Friendship Textile Co. Ltd v. Our Lady of the Usambara Sisters
• Donoghue v. Stevenson

Cited Statute

• Constitution of United Republic of Tanzania
• Mining Act, 2010
• Civil Procedure Code

Judge Name

• A. M. Mwampashi
• A. G. Mwarija
• Z. G. Muruke

Passage Text

• the answer to the 2nd ground of appeal is that even though the respondents' claim that the mining activities of the appellant caused them illness was not proved, the Court finds that the activities caused nuisance to them thereby making the appellant liable to pay them general damages.
• by conducting mining operations and particularly blasting explosives at a close distance to the respondents' house while they were in occupation of the affected land was a breach of the duty of care towards them.
• The principle is that, where there is contributory negligence by a party, the amount of damages awardable to the party are to be reduced depending on the degree of his negligence... a compensation of TZS. 25,000,000.00 to each of the respondents will meet the justice of the case.