Ruling Yusuph Juma Mazwil and others v Mining Commission and 3 others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO. 9390 OF 2024 YUSUPH JUMA MAZWILI…………………………….……………..…...1st APPLICANT KANUNU RUKIKO KANANDA…………………………………….….….2nd APPLICANT

VERSUS MINING COMMISSION….………………………….…..………..….. 1st RESPONDENT THE RESIDENT MINING OFFICER MWANZA REGION…….…...2nd RESPONDENT THE ATTORNEY GENERAL……………………………………………..3rd RESPONDENT MS. LISHOKELA MINING GROUP……………………….…...……..4th RESPONDENT

RULING 22nd July & 30th July 2024. ITEMBA, J. By way of chamber summons, the applicant, applied to this court for an order of extension of time to file a judicial review against the decision of 1st and 2nd respondents of canceling their mining license numbered PML 0488 MZA. The application is supported by a joint affidavit deponed by the applicants. On the date when the matter was scheduled for hearing the applicants and 4th respondent were present. The applicants were represented by advocate Deus Richard who was accompanied by the law students, Ms. Gladness Moses and Mariam Mrimi. The 1st, 2nd and 3rd respondents had the services of Ms. Sabina Yongo and Ms. Devota Kigalu 1 learned state attorneys while Advocate Alex Luoga was for the 4th respondent. Rolling the ball, Mr. Richard told the court that the applicants intend to file a judicial review against the decision issued by 1st and 2nd respondents made on 4/12/2023. That, following this decision the applicants were to comply with section 65 of the Mining Act which requires the decision of the commission for cancelation of mining license to be challenged through an application for judicial review at the High Court within 60 days. However, the said 60 days lapsed on 4/2/2024 and by that time the applicants were in court already because they had filed a Misc. Civil Cause no. 3451 of 2024 (annexure YK7) that the said application

was filed timely only that the approach was wrong that is why it was withdrawn on 28/3/2024. He submitted that this is a technical delay and it constitutes a good cause regardless of whether the applicant was competent or otherwise. He sought support in the case of Filson Mushi v JITEGEMEE SACOS Ltd Civil application 313/05 of 2021. He added that after withdrawing the former application, the applicant approached him and he advised them to file this application. 2 Furthermore, he submitted that, Section 119 of Mining act R.E 2019 recognise the commissioner as a mediator of disputes including boarders’ dispute. That, according to the letter of the 1st and 2nd respondent dated 29/11/2023 (attachment YK3) the applicants and the 4th respondent had a boundary dispute and without being heard, the applicants were being served with a letter cancelling their license. That, the applicants were condemned unheard. That, they were never heard on the dispute of boundary which was brought to the office of 2nd respondent by the 4th respondent and; principally, where there is a breach of natural justice a part affected by such, should given the benefit. The applicants’ counsel supported his prayers with the case of VIP ENGINEERING AND MARKET LIMITED and 2 Others v CITIBANK TZ LTD Civil application 103 of 2005 CAT. He also submitted that there is no requirement for leave to file judicial review

because under section 65 of the Mining Act, judicial review is open for any person aggrieved with Mining Commission’s decision. That, if a party starts with applying for leave, when he comes back to file a judicial review, he will be already out of time and this is what happened to the applicants. He compared the procedure with the one under the PPRA 3 Act under section 101(1) and cited the case of China Road and Bridge Cooperation v AG and 3 others HC Misc. Civil Application no.55/2023. Where it was held that in application for judicial review, there is no requirement for leave. Replying, the learned state attorney strongly opposed the application. She started by insisting that under Section 14(1) of the Law of Limitation Act, extension of time is by court’s discretion when the applicants show a sufficient cause for delay. She added that, according to the landmark case of Lyamuya Construction Co. Ltd v Board of Trustees of YMCA the applicant is to account for delay, the delay should not be ordinate, applicant must show diligence and there must be a point of law or illegality. That, the applicant has not fulfilled all the 4 conditions. They did not account for all days because the impugned decision was issued on 4/12/2023 but applicants filed this application on 29/4/2024. The 60th days will fall on 2/2/2024 and not 4/2/202 as submitted by the applicant’s counsel. From 2nd

February to date of filing, the delay is of 86 days. Also, in the applicants’ affidavits there are days which are not accounted, more than 49. 4 That, in the second requirement the delay is ordinate because of the number of days. That, the applicants and their advocate have not shown any diligence in pursuing their right due to delay and not accounting for some of the days it shows that they were negligent. That, under paragraphs 17, 21 and 22 they were filing irrelevant and unsuccessful applications. She stressed that, negligence of applicants do not constitute good cause for delay, she cited two Court of Appeal cases of JUBILEE Insurance Co. Ltd v Mohamed Sameer Khan. Civil Application No. 439/01 of 2020 page 14 and Farida Mbarak and another v Domnina Kagaruki and 4 others Civil reference no. 2019 page 20. That, the 4th condition is not met because there is no illegality in the impugned decision as it appears in the applicant’s affidavit paragraphs 8 and 12 and their counter affidavit in paragraph 5. That there were 2 meetings held on 11/7 and 29/7 2023 before the decision was issued, therefore the right to be heard was granted. On the exclusion of leave requirement under section 65 of Mining Act, she submitted that the is no express provision which exclude the mandatory requirement of leave for judicial review as under rule 5(1) of Law Reform (Fatal Accident and

Miscellaneous Provisions) (Judicial Review 5 Procedures and Fees) Rules, 2014 because the word used is ‘shall’. Thus, there is nothing importance in the intended application as it appears to be incompetent. That, the case of China Road is distinguishable because the relevant law was of PPRA and here it is Mining Law. That, the other case of Filson Mushi is distinguishable because applicants have not fulfilled the conditions of Lyamuya Construction and the case of VIP Engineering is distinguishable because herein, the applicants were given right to be heard. Mr Luoga for the 4th respondent was in support of the learned state attorney’s submission that he opposes the application. Rejoining, Mr. Richard stated that the conditions by Lyamuya construction case are not to be used as a checklist but based on the facts of the case and that, in VIP engineering case, page 22 state the right to be heard is the most overriding. He further challenged the counter affidavit that nothing is annexed to show the applicants were heard even if they did not want to sign the attendance, where are the minutes? That, they were summoned but they were not heard. On failure to account for delay, he reiterated that the former case was withdrawn on 28/3/2024 and that the rest of the days are accounted 6 for in the applicant’s affidavit. That, the issue of importance should not be discussed at this stage as

the applicants are only bound to disclose the existence of illegality. Based on the above submissions, the issue is whether the application has merit. I have noted the issue of parties, whereas the mining license mentions 3 partners but there are only 2 applicants in this application. Nevertheless, because the right to appeal is optional to the parties and one cannot be forced to initiate proceedings in court, I will deal with the applications as it is. Before I delve on deciding the application on merit, I have also noted that parties are not in agreement as to whether leave is a prerequisite before filing an application for judicial review. The applicants withdrew Misc. Cause No.3451 of 2024 on which they were applying for leave. The 1st to 3rd respondents in paragraph 11 of their joint counter affidavit insist that the requirement for leave has never been abandoned by the Mining Act. In my view, at this point, I am only invited to decide an application for extension of time. I desist to pre-empt an application which is yet to be filed in court. The issue as to whether leave is mandatory or not, ought to 7 be raised in a later stage if the applicants will file an application for judicial review subject of the outcome of this application. Moving back to the substance of the application, as rightly stated by the learned state attorney, it is trite law the applicants have to

advance sufficient cause for an extension of time to be granted. The Mining Act under section 65, requires the aggrieved party to apply for Judicial Review within 60 days from the date of decision. According to the affidavit, the mining license was issued to the applicants on 17/5/2023 and on 29/11/2023, the applicants were invited by the 2nd respondent to attend a meeting and were informed that their license has been cancelled. That, on 4th December 2023 they were served with a notice of cancelation and; on 22/4/2024 they revisited the online government portal for (madini portal) and noted that a new license with the same coordinate areas as theirs, was issued to the 4th respondent. Now, counting from the date of cancelation, which is 4/12/2023 the 60 days would have lapsed on 3/2/2024. Therefore, with the 1st application, the applicants were within time. Also, the whole time when the applicants were before the court that is 27/1/12024 and 28/3/2024, is considered as technical delay and not deliberate delay as the applicants were in court’s corridors for their rights. It was held in 8 Philemon Mang'ehe T/A Bukine Traders v Gesso Herbon Bajuta Misc. Civil Application no. 374/02 of 2022 CAT, Arusha that: ‘For the avoidance of doubt, technical delay is applicable in a situation when the first appeal or application was timely filed but failed to proceed due to some other

factors.’ See also Fortunatus Masha v. William Shija [1997] T.L.R. 154 and Salvanda K.A. Rwegasira v. China Henan International Group Co. Ltd, Civil Reference No. 18 of 2006 (unreported). Hence, the delay which the applicants are facing is between the date when the former application was withdrawn that is 28/3/2024 and the date of filing which is 29/4/24. This makes a total of 32 days. The applicant’s counsel has explained that they used this time to prepare for the present application. I have considered that, during this time the applicants were preparing their application but in between, there were also changes of advocates which may cause more delay. Therefore, I neither consider the applicants as negligent nor the delay as inordinate. On the issue of illegality, the applicants explained that they were not availed with the right to be heard. The respondents are opposing this argument but as rightly submitted by the applicant’s counsel, there is 9 nothing proving that the said right was exercised. Paragraph 7 of the counter affidavit speaks about the applicants and the second respondent having ‘previous meetings’ before cancelation but those meetings are not supported by any evidence. The law is settled that, where illegality is raised as a ground for seeking an extension of time, such ground amounts to sufficient cause. The Court of Appeal in Ngao Godwin Losero vs Julius

Mwarabu, Civil Application No. 10 of 2015, observed as follows when the issue of illegality was raised: - "In our view, when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record straight” The Court has further reaffirmed the stated stance in VIP Engineering and Marketing Limited and Three Others v. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 (unreported), wherein it was clearly stated: - "It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 10 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay" Guided by the above principles, and the fact that the applicants were not afforded their rights to be heard, there is an apparent illegality and that need to be proved in a just cause. Based on the fact that this court is only called upon to extend time, the issue as to whether the applicants were afforded the right to be heard will be addressed in details when the applicant will lodge an application for judicial review. In the final analysis, this application is merited and I proceed to grant the extension of time as applied. The applicants have to file their application for judicial review within 30 days from the day of this decision. No orders as to costs. It is so ordered. L. K. J. ITEMBA

JUDGE 30/7/2024 11