mamba cement company limited vs mining commission and another 2023 tzhc 16504 31 march 2023

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY)

AT PAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 6 OF 2023

IN THE MATTER OF AN APPLICATION FOR LEAVE TO

APPLY FOR ORDER OF CERTIORARI AND MANDAMUS BETW EEN ■ MAMBA CEMENT COMPANY LIMITED------ APPLICANT AND THE MINING COMMISSION------------- 1st RESPONDENT THE ATTORNEY GENERAL---------------2nd RESPONDENT

RULING 23* March & 31st March, 2023. MGONYA, J. This application has been brought by way of Chamber Summons under Sections 2 (1 ) a n d 2 (3 ) o f th e Ju d ica tu re a n d A p p lica tio n o f La w s A ctf Cap. 3 5 8 [R . B. 2 0 1 9 ] se ctio n 1 9 (2 ) a n d se ctio n 1 9 (3 ) o f th e La w R eform (F a ta l A ccid e n t M isce lla n e o u s P ro v isio n s) (Ju d ic ia l R e vie w P ro ced u re a n d Fees) R u le s, 2 0 1 4 G N No. 3 2 4 o f 2 0 1 4 an d se ctio n 9 5 o f C iv il P ro ced u re Code, Cap. 3 3 [R . E. 2019]. The Applicant is praying for the following orders: 1. That the Honourable Court be pleased to make an order granting leave fo r the A pplicant to apply fo r an order o f certiorari to quash the decisions o f the 1st Respondent dated 15th December, 2022 cancelling the Applicant's M ining Licence ML 627/2020 and M ining Licence ML 628/2020; 2. Leave to apply fo r order o f Mandamus to com pel the 1st Respondent to issue 2 respective fresh M ining Licenses covering the period between 27/02/2020 when M ining Licence ML 627/2020 and ML 628/2020 were issued and the date o f the order o f Certiorari; 3. That this Hon. Court be pleased to direct that the order fo r leave granted operates as a stay o f the notices o f cancellation u n til determ ination o f the intended application fo r Ju d icial Review. The application is supported by an Affidavit of PAWAN PATEL,

the Managing Director of the Applicant herein and counted by the Joint Counter Affidavit of 1st and 2nd Respondents herein deponed by one Ally Sadick Mganga, the Principal Officer of the 1st Respondent. While countering the above application, the Respondents herein filed a Notice of preliminary objection to the effect that the application is hopelessly time barred hence contravening the requirement under section 65 (1) of the Mining Act Cap. i 123 [R. E. 2019]. As a cardinal principle, the Preliminary objection has to be disposed prior to the main application. The same was disposed orally whereby the Applicant was presented by Mr. Sinare Zaharan, Learned Advocate while the Respondents were presented by Mr. Elias Mwenda, the learned State Attorney. I have read and understood the counsels' submissions and will refer them whenever a need arise. The main issue for this court to dispose is whether the preliminary point of objection has merits. There is no dispute that the law applicable for determination of this matter is the Mining Act, Cap. 123 [R. E. 2019] basing on the principle that if there is specific law which provides for a specific law to provide a certain period of time for an action, then that law will supersede the general law as was cemented in the case of E X IM B A N K TAN ZAN IA; LTD VS SAI EN ER G Y & LO G IST IC S S E R V IC E S LTD. CO M M ERCIAL A PPEA L NO. 2 O

F 2 0 2 2 a t page 12, GODFREY NDIMBO VS TANZANIA PORT AUTHORITY,r i REVISION APPLICATION NO. 72 OF 2019 at page 6. The specific provision in this case is Sectidn 65 of the Mining Act, which provides for the procedure for applying for Judicial Review to the High Court within 60 days. The same provides: "65(1) A person who is aggrieved by a decision o f the Com mission fo r suspension o r cancellation o f m ineral rights may, w ith in s ix ty d a ys fro m th e d ate o f the decisionf file an application fo rju d icia l review to the High Court. " As per the submission of the learned State Attorney, the Applicant has delayed for three (3) days to file this application counting from 12/12/2023 when the Mining License was cancelled to 15/2/2023 when this application was filed. According to him, 60 days ended on 12/2/2023. The Counsel for the Applicant agreed with the above submission, however he had the view that sixty days ended on 15/2/2023, after excluding 12/12/2022 which was a cancellation date, the 12/2/2023, which was Sunday and 13/2/2023 which was a filing date. He relied on section 60 (l)(f) of the Interpretation of Laws Act Cap. 1 [R. E. 2019] in calculating the above time. According to him, the end date of filing this application is 15th February, 2023 when this application was filed. With that view, he found that this application was filed within statutory time as the

same was filed in 14th February, 2023 electronically. With respect, I differ with the submission of thelCounsel for i the Applicant with regard to counting and the exclusion dates to include filing date. The relevant provision in this matter indeed is section 60 (l)(b) of the Interpretation of Laws Act Cap. 1 [R. E. 2019] which exclude the cancellation date of License. The said provision reads; 60.-(l) In computing time for the purposes of a1written law- a) N/A b) where a period o f tim e is expressed to be reckoned from , or after, a specified day, th a t d a y s h a ll n o t be in clu d e d in th e p e rio d ; Sunday dated 1 2 /2 /2 0 2 3 cannot be excluded as the filling date did not fall on that date but on 10 /2 /2 0 2 3 . Therefore, with that view, counting of days will start from 1 3 /1 2 /2 0 2 2 and sixty days falls on 10/2/2Q 23, but this application was filed on 15 /2 /20 2 3 , which is five days out of the prescribed time. The submission of the Counsel for the Applicant submitted that the application was filed ielectronically on 1 4 /2 /2 0 2 3 to mean was within time, is misconceived, as the records indicates that the application was filed1electronically on 1 5 /2 /2 0 2 3 and the payment of court fees was executed on the same date. It has been the directives of the superior Court i that proper filling is upon payment of court fees. See the case of JO H N CHUW A V.

ATH O N Y CIZA [1 9 9 2 ] TLR, 233; th e Ju d ica tu re a n d A p p lica tio n o f Law s (E le ctro n ic F ilin g R u les), GN No. 14 8 o f 2 0 18 did not do away with the condition of attaching the exchequer payment receipts. Having been found that this application was filed out of time, the point of preliminary objection is upheld. Consequently, this application is hereby dismissed. No order for costs. It is ordered accordinalv. 24/02/2023 Court: Ruling delivered on 31/03/2023 before Hon. F.H. Kiwonde, Deputy Registrar in Chamber in presence of Miss Norah Mara, Advocate for the Applicant and in presence of Mr. Elias Mwendwa, State Attorney for the Respondents and M.G. Kany