JONATHAN KIULA VS MINISTRY OF MINERAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPLICATION NO. 21644 OF 2024 (C/F Misc. Cause No. 15376 of 2024 High Court Arusha) JONATHAN LUTHER KIULA........................................................I st APPLICANT LEONARD RICHARD M M BAGA..................................................2nd APPLICANT HERMAN JOSEPH KASENGA..................................................... 3rd APPLICANT ELIJA NGOYAN RUMBE AND 536 OTHERS................................ 4™ APPLICANT VERSUS MINISTRY OF MINERALS....................................................... 1st RESPONDENT ATTORNEY GENERAL..............................................................2nd RESPONDENT RULING 25/02/2025 & 28/02/2025 NDUMBARO, J Before me is an application for an extension of time brought by the applicants representing 536 others, under the provision of section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019. In this application, the applicant is seeking an extension of time to file an application for leave to file a judicial review to challenge the respondent's decision to suspend Mining Licence No. ML 490/2013 in respect of Tanzania One Mining Limited located at Block C Simanjiro Mererani in 2020. The application is further supported by an affidavit duly sworn by Frank Wilbert Makishe, the applicant advocate, whereby in paragraph 12 narrated culminating in the delay of the applicant to file his application to this court within time. The respondents, on the other hand, opposed the application through his counter affidavit sworn by Godfrey Nyamsenda. The applicant's affidavit is that the applicants herein were the employees of Tanzania One Mining Limited and her successor, Sky Group Association Limited, who signed a Joint venture agreement with the state with a 50% share each. Eventually, the Mining Licence was cancelled, whereby the applicants filed a labour matter before CMA, and it was ruled in their favour, and they were awarded 2,529,331,586, but failed to execute the decision. The applicants, under a representative suit, filed a leave to apply for judicial review on 31/05/2024, after being granted an 2 extension of time, however, the matter was struck out for being incompetent with leave to refile. The applicants in paragraphs 11 and 12 of their affidavit went on to state that the ruling in the above-captioned matter was delivered on 19/08/2024 before Honourable Mwaseba J, and a copy was not made available for collection on the date of the ruling. The applicant made a formal request on 26/08/2024; it was made available on 28/08/2024, the application was uploaded on 29/08/2024, and the application was admitted on 02/09/2024. Moreover, the applicant has also alleged that he intends to challenge the judgment because the said judgment is tainted with illegalities to the effect that illegal detention of property and putting under military control which need to be challenged by judicial review. Therefore, the applicant prays for this court to grant an extension of time so that he may file an appeal. On the counter affidavit, the respondent faulted that the applicant had no sufficient reasons for a delay of 15 days to warrant an extension. 3 Otherwise, it should be put into proof on the issue of delay and illegality alleged. The submission was by way of written; the applicant enjoyed the service of Advocate Frank Wilbert Makishe, and the respondent was presented by Zamarad Johanes State Attorney. The applicant's counsel submitted that his client intends to file judicial review against respondents on the cancellation of the Mining licence. However, he delayed filing the application. He argued that the delay was due to reasons beyond the applicant's control, which is awaiting a copy of the ruling and illegality. On the first reason for the delay, the counsel for the applicant argued that the lateness was due to a lack of necessary documents, which is the ruling. That ruling was derived on 19/08/2023, and a copy of the ruling and proceedings was issued on 26/08/2024. The application was uploaded to the court filing system on 29/08/2024 and physically filed before the court on 02/09/2024. On the second ground of illegality, the counsel argued that the State Mining Company (STAMICO), who was in partnership with the applicant's Employer, was responsible for the fault of illegality to the effect that putting under detention and military control the employer property, this constitutes illegality. Argued illegality constitutes good ground for extension of time, in support of argument cited a case of Laurent Simon Asenga Vs Joseph Magoso & Others Civil Application No. 50/2016, CAT DSM Massat J, The applicant considers two grounds sufficient and prays for this court to extend the time to file an application for leave for filing judicial review to challenge the respondent's decision. Opposing the application, Ms Zamaradi Johannes argued, that the application was delayed for 15 days, the delay was not accounted for, and no explanation for the technical delay was raised, absence of explanation may make it difficult for the court to exercise its discretion power referring the case of Ralph Windham in Daphne Parry Vs Murray Alexander Carson (1963) EAC 546. Argued illegality as sufficient reasons must be apparent on the face of it, should not draw long argument as it is in this case, supporting the argument cited a case of The Principle Secretary Ministry of Defence and National Service Vs Devran Valambia (1992), TLR 387 on page 9. Argued further, that the reasons given by the application as to the extension of time were not sufficient. The Court should not consider. Finally, the respondent prays this court to dismiss this application with cost. In rejoinder, the applicant's counsel reiterated his submission in chief and argued, that the respondent did not dispute that there was a joint venture between their employer and STAMICO and the presence of police preventing the execution of the award by attaching the property, the act of preventing execution by police is illegal on face of it. Further argued the applicant demonstrated sufficient interest, supporting the argument cited in the case of Jonathan Kiula and Others Vs Ministry of Minerals and Others Misc. Application No. 17/2023 Hon Bade J. The applicants pray this court grants an extension of time in the interest of justice. Having considered the parties' submissions, the question for my determination is whether the applicant has exhibited good cause to warrant this court to grant the relief sought. It is a trite law that an application for extension of time is entirely in the discretion of the Court to grant or refuse. This unfettered discretion, however, has to be exercised judicially, and an overriding consideration is that there must be "sufficient cause" for doing so. What amounts to 6 sufficient cause has not been defined. In decided cases, several factors have to be considered, including whether or not the application has been brought promptly, the absence of any valid explanation for the delay, lack of diligence on the part of the applicant and illegality. In the instant application, the last ruling that the applicant intends to relay to establish time limitation was delivered on the 19th day of August 2024, whereas the copy for the said ruling was issued to the applicant on 26 September 2024, and the application physically was filed by the applicant on 02 September 2024. It has been a well-settled position of the law that a party seeking an extension of time must sufficiently account for each day of delay. In the decision in the case of Sebastian Ndaula vs Grace Rwamafe, Civil Appeal No. 4 of 2014 CAT at Mbeya (Reported Tanzlii), it was held that; "The position o f this court has consistently been to the effect that in an application for extension o f time, the applicant has to account for every day o f delay." In accounting for the delays, Mr Frank's submission was to the effect that, there was no delay of 15 days as claimed by the respondent, applicants made an effort to request a copy of the ruling with the intention to file an application for an extension of time to file an application for leave for judicial review challenge the decision of 1st respondent cancelling Mining Licence, the request was made on 19/08/2024, the ruling was issued on 26/08/2024 and on 02/09/2023 applicants lodged the application. Thus, there was no delay. Am aware of the exclusion of time spent by an applicant or plaintiff awaiting Judgment. For ease of clarity, I wish to reproduce section 19 of the Law of Limitation Act Cap 89 R.E 2019, which states as follows; "19. -(1).............. (2) In computing the period o f limitation prescribed for an appeal, an application for leave to appeal, or an application for review o f the judgment, the day on which the judgment complained o f was delivered, and the period o f time requisite for obtaining a copy o f the decree or order appealed from or sought to be reviewed, shall be excluded. 8 (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy o f the judgment on which it is founded shall be excluded. (4) In computing the period o f limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy o f the award shall be excluded. (5) Where the court to which an appeal or application for leave to appeal or application for review is made, is satisfied that it was necessary for the appellant or, as the case may be, the applicant, to obtain a copy o f the proceedings o f the relevant suit or proceeding before lodging or making the appeal or the application, the court may allow being excluded from the period o f limitation prescribed for such appeal or application, the period requisite for obtaining a copy o f the proceedings" I have had enough time to go through the application at hand, together with the rival submissions of the parties' advocates. Nevertheless, it was the observation of this court that the applicants requested a copy of the ruling through a letter with reference number LSA/HCD/L1/2024 dated 26/08/2024, and paragraph 12 of the affidavit shows the ruling was made available on 28/08/2024; the affidavit shows it was filed on 02/09/2024. From the submission of both sides, it is to the satisfaction of this court that there was no delay, the applicants herein had not slept over his right, he was prevented from lack of necessary documents to file their application, and once was supplied, they filed this application for extension of time within 2 days, considering that 31/08/2024 and 1/09/2024 were Saturday and Sunday respectively. The period during which the applicant awaits a copy of the judgment and decree is excluded under Section 19 of the Law of Limitation Act (Supra). In that regard, 10 it is the firm view of this court that the applicant is salvaged by the provision of Section 19 of the Law of Limitation Act Cap 89. On the issue of an arguable case, Mr. Frank has also alleged illegality as a reason for the grant of this application. I am certain that a claim of illegality or otherwise of an impugned decision has, all along, constituted a good cause for the extension of time. In expounding the said illegalities, the counsel raised the issue that the decision to cancel the mining license made by the Government and restricting the applicant from attaching the property, argued the government's inaction is considered as illegality. It is my considered view that the inaction of the government will be discussed in an application for judicial review. With due respect, I wish to state that at this juncture, what this court needs to pronounce is only on whether sufficient grounds for the extension have been advanced by the applicant, and any discussion to do with the intended application it is my finding that, the conversation is subject for another day. In the result, I am satisfied that the applicant has shown sufficient reasons to warrant an enlargement of time to file their application for leave 11 to file judicial review. In that regard, the intended application should be filed within fourteen (14) days from the date of delivery of this ruling. Cost shall follow suit. It is so ordered ^^ D. D. NDUMBARO JUDGE 28/02/2025 12