Yusuph Ruling

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

AT MWANZA MISC. CAUSE NO. 21194 OF 2024

IN THE MATTER OF AN APPLICATION FOR PREROGATIVE ORDERS OF

MANDAMUS AND CERTIORARI IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT. [CAP. 310 R.E. 2019]; IN THE MATTER OF THE MINING ACT CAP 123 R E 2019 IN THE MATTER OF THE (MINING DISPUTE RESOLUTION) RULES, 2021 GN 323

IN THE MATTER OF AN APPLICATION TO CHALLENGE THE DECISION

OF THE MINING COMMISSION AND THE RESIDENT MINING OFFICER

MWANZA REGION FOR CANCELLATION OF THE MINING LICENCE PML 0488MZA

BETWEEN YUSUPH JUMA MAZWILI …………………………….…………… 1ST APPLICANT KANUNU RUKIKO KANANDA ……………………………..……… 2NDAPPLICANT AND MINING COMMISSION …………………..……………………… 1ST RESPONDENT THE RESIDENT MINING OFFICER MWANZA REGION …… 2ND RESPONDENT THE ATTORNEY GENERAL ……………………….……………… 3RD RESPONDENT MS. LISHOKELA MINING GROUP……………………….………4TH RESPONDENT

RULING 7th & 15th November 2024 CHUMA, J. The instant application is centered on judicial review whereby the applicants are moving this Honourable court to issue the prerogative orders in terms of certiorari and mandamus. 1 The application is made by the chamber summons under sections 65 of the Mining Act Cap 123 RE 2019, Section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act. [Cap.310 R.E. 2019] and Rule 4, 8 (2), (3), (5), and 9(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. [G.N.NO324 OF 2014]). The application is supported by the affidavit sworn by the applicant. This application however encountered preliminary objection which is subject to this decision. The preliminary objection containing one point is to the effect that, the application is incompetent before this court for the applicant’s failure to obtain leave to file this application of Judicial Review contrary to Rule 5(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. [G.N.No.324 of 2014]) During the hearing of the raised objection, the applicants had the legal service of Mr. Elias Hezron Advocate while the respondents were represented by Ms. Sabina Yongo and Devotha Selukele State Attorney’s and Mr. Alex Luoga advocate for the 4th respondent. As

usual, Ms. Sabina Yongo State Attorney took the floor first and argued in support of the raised objection. She submitted that it is a law 2 requirement under Rule 5(1) of the Rules 2014 for the applicant to first obtain leave of the court to file such an application. The essence of leave is for the court to ascertain whether there is a prima facie case for Judicial Review. To support her submission, she cited the case of F.3329 CPL Buberwa Leonard Magayane & Another Vs. Minister for Home Affairs & Two Others Civil Appeal No. 119 of 2020 on pages 4 to 5. In this case, it was emphasized the need to seek and obtain leave to file a Judicial Review. In the present application, its chamber summons and accompanying documents nowhere is reflected that the applicant sought and obtained leave of the court to file this Judicial Review. There is no ruling attached to this application indicating obtainment of the court leave to file Judicial Review. She went on to contend that section 65 of Mining Act Cap. 163 R.E 2019 allows parties to challenge the decision of the Mining Commission via Judicial Review to the High Court within 60 days. However, the cited provision and the whole act do not provide for a procedure for Judicial Review to the High Court. This implies that the Judicial Review in circumstances has to be governed by Cap 310 RE 2019 and its Rules 2014. 3 No where on the Mining Act

requirement of leave has been excluded in such application. She then insisted on her submission that failure to obtain leave of the court to file Judicial Review renders this application incompetent and has to be struck out with cost. Mr. Alex's advocate on his side subscribed to the submission by Ms. Sabina Yongo and prayed this application to be struck out with cost In response, Mr. Elias Hezron advocate for the applicants was quick to concede the submission of Ms. Sabina Yongo that under Rule 5(1) of the Rules 2014 GN No. 324 of 2014 application for judicial review has to be first proceeded by seeking leave. But to him, that is a general provision. He argued that where there is a specific statute or law providing remedy the specific law prevails over the general law. This principle was stated in the case of China Road & Bridge Cooperation Vs. AG & Three Others Misc. Civil Application No. 55 of 2023 on page 5. And was of the further view that since the Mining Act provides for a remedy for Judicial Review to challenge the decision of a Commission, the application of General law that is GN No. 324 of 2014 and its Act Cap. 310 of 2019 becomes irrelevant. The cited section 65 of the Mining Act, allows a litigant to lodge an application for Judicial Review to the High Court within 60 days from the date of the decision. Therefore, if the lawmakers 4 meant leave as the prerequisite

condition they could have expressly stated so. Lawmakers while enacting a Mining Act being a specific statute dealing with mining grievances intended to exclude the applicability of Cap 310 and its Rules GN No. 324 of 2014. The reason is that one time stipulated in the Mining Act for judicial review runs from the date of the decision of the commission. The time for obtaining leave under GN 324 of 2014 is 6 months as per Rule 6 of GN No. 324 of 2014 the same time of 6 months has not been excluded under section 65 of the Mining Act. Three the time of Limitation provided for by one law cannot be shortened by another law if both limitations of time are intended to run together. It is from this submission, that Mr. Elias's advocate argument is that the lawmaker did not intend GN No.324 of 324 to apply in Judicial review under the Mining Act. It was his opinion that the lawmaker while making section 65 of the Mining Act were aware of the existence of the provision of Rules 5 and 6 of GN No. 324 of 2014 which provides for a longer period for obtaining leave but did not include that longer time in section 65 of Mining Act. And lastly, the reading of section 65 of the Mining Act does not in any way provide an exclusion of time that would be spent in obtaining leave under GN No. 324 of 2014. On the contrary, the provision of 65 of the Act would have specifically stated so. 5 This court

has had an opportunity to discuss a less similar situation like this in the case of China Road (supra) when dealing with section 101 (1) of the Public Procurement Act having a similar construction with section 65 of the Mining Act where it was held that the provision of Cap. 310 of 2019 and its Rules GN 324 of 2014 are excluded because there general provision which cannot apply see page 6. Ms. Sabina Yongo cited the decision in the case of Buberwa (supra) but in his view, that decision is distinguishable because in that case, the law under consideration was the Police Force and Prisons Service Commission Act Cap. 241 R.E 2002 and Police Force Service Regulation GN No. 161 of 1998. The said laws do not contain judicial review as a remedy therefore Cap. 310 and GN No. 324 of 2014 were applicable. An objection like this was not raised and discussed by the Court of Appeal. In that sense, the cited case is distinguishable here. He lastly prayed the raised objection be dismissed with cost. In her rejoinder, Ms. Sabina Yongo SA started subscribing to the submission by Mr. Hezron that a specific law prevails over a general law. But there is no conflict on obtainment of leave. The Mining Act did not do away nor did it provide for procedures for judicial Review hence Cap. 310 of 2019 and GN No. 324 of 2014 became into operation. Mr. Hezron also argued that the makers of the Mining Act

intended to exclude the leave 6 requirements and also submitted on the time limitation, her submission was that the lawmakers never intended to do away with leave requirements which is why they never provided with procedures for judicial review. Section 65(2) of the Mining Act, provides for the making of regulations but to date, no such regulations have ever been made hence the applicable ones are from the cited laws and rules. The applicants themselves admit that Cap. 310 of 2019 and GN No. 324 of 2014 are applicable in this application by citing them in the chamber summons. They equally ought to follow what the same provides. The cited case of China Roads(supra) circumstance differs from the present one because in that case, the matter was on procurement contrary to the instant one that deals with mining activities. More so the cited case does not bind this court rather persuasive. The cited case of Buberwa (supra) is not distinguishable because the ratio decidend are the same. On the other hand, Mr. Alex's advocate had nothing to add. I have keenly considered the rival submissions for and against both parties. My task is to determine whether the preliminary objection is not meritable. Before I delve into the main concern, it is pertinent to visit the guiding principles of law in the disputed concern. The guiding principles 7 were well pronounced in the case of Attorney

General Vs. Wilfred Onyango Mganyi & 11 Others, Criminal Appeal No.276 of 2006 in which the Court held that; “Leave of the court is a necessary pre-condition to the making of an application for judicial review, and no application for judicial review may be made unless this leave has first been fully obtained”. See also the case of F.3329 CPL Buberwa Leonard Magayane & Another Vs. Minister for Home Affairs & Two Others Civil Appeal No. 119 of 2020. The essence and aim of this stage are to filter out hopeless and groundless applications and prevent time wastage as was held in the case of Emma Bayo Vs. The Minister for Labour and Youth Development & 2 Others Civil Appeal No. 79 of 2012. Guided by the above principles, which the parties are also sides with, Rule 5(1) of GN. No. 324 of 2014 is avoidable before applying for a judicial review application. That principle takes me to a critical question which is a major concern here whether the above-cited Rule 5(1) applies to an application for judicial review arising from the provision of section 65 of the Mining Act. 8 According to the respondents, the cited rule applies. She went on to contend that section 65 of Mining Act Cap 163 RE 2019 allows parties to challenge the decision of the Mining Commission via Judicial Review to the High Court within 60 days. However, the cited provision and the whole act do not provide for a procedure

for Judicial Review to the High Court. This implies that the Judicial Review in circumstances has to be governed by Cap. 310 R.E 2019 and GN. No. 324 of 2014. This fact was vehemently contested by Mr. Elias Hezron Advocate on the ground that, where there is a specific statute or law providing remedy, the specific law prevails over the general law. Mr. Elias Advocate was of the further view that since the Mining Act provides a remedy for Judicial Review to challenge the decision of a Commission, the application of General law that is GN No. 324 of 2014 and its Act Cap. 310 of 2019 becomes irrelevant. The cited section 65 of the Mining Act, allows a litigant to lodge an application for Judicial Review to the High Court within 60 days from the date of the decision. Therefore, if the lawmakers meant to leave as a prerequisite condition they could have expressly stated so. He cites China's case (Supra) to support his argument. 9 And that Lawmakers while enacting a Mining Act being a specific statute dealing with mining grievances intended to exclude the applicability of Cap. 310 and its Rules GN No. 324 of 2014. From the foregoing, I subscribe to the position stated by Mr. Elias advocate which is also a stance of Ms. Sabina Yongo State Attorney Mr. Alex advocates that specific Law always prevails over the general law. However, in my view, the same may also depend on the

circumstances of each particular case. In the instant application, Section 65 typically provides a remedy for judicial review for aggrieved parties to challenge decisions made by the Mining Commission under the Act. It likely outlines the legal recourse available, such as applying for judicial review. On the other hand, Rule 5(1) of GN No. 324 of 2014 deals with the judicial review procedure and specifically a requirement for leave to be granted by the court before an aggrieved party can proceed with judicial review. This rule outlines the process to ensure that the court grants permission to initiate a judicial review, typically to filter out frivolous or unmeritorious claims. The above concept again leads me to the next question on whether Section 65 does away with the requirement provided for under Rule 5(1) of GN No. 324 of 2014. According to Mr. Elias's advocate, the response 10 is in the affirmative which is not the case with Ms. Sabina Yongo State Attorney and Mr. Alex's advocate. In response to the above question, I feel comfortable siding with the respondents’ stand unlike that of Mr. Elias's advocate. The rationale behind my stand is that Section 65 provides the right to judicial review, but this right is subject to procedural rules that govern how judicial review is to be conducted, including the requirement for leave to apply for judicial review to filter out

frivolous or unmeritorious claims [Underscoring is mine]. This aim cannot be excluded for only matters arising under the Mining Act without being expressly provided so, because is an important step to ensure the application contains arguable points aiming at avoiding multiplicity of application before the court of law. It is my further view even if Section 65 guarantees the right to challenge a decision, it doesn't necessarily mean that the procedural requirements for invoking judicial review including obtaining leave are ipsofactor waived. The submission by Mr. Elias that Lawmakers while enacting a Mining Act being a specific statute dealing with mining grievances intended to exclude the applicability of Cap. 310 and the Rules under GN No. 324 of 2014 is out of context. Unless Section 65 of the Mining Act specifically states that the leave requirement under Rule 5(1) is not applicable or superseded, the 11 procedure set out in GN No. 324 of 2014 such as the leave requirement would generally still apply bearing in mind the essence of leave requirement here in above pointed. The issue of time limit disparities provided under the Mining Act and GN. No. 324 of 2014 is not a factor that amounts to the exclusion of the cited rule in the application under section 65 of the Mining Act as submitted by Mr. Elia's Advocate. The wording used under the cited Rule does not imply that it

meant to exclude applications made under the Mining Act rather it applies to all applications for judicial review as it was held in the case of the Attorney General (supra) that no application for judicial review may be made unless this leave has first been duly obtained. In the final analysis, I find merit in the raised objection and sustained. In the event, that the application is incompetent before this court that renders this court struck out the same with cost. DATED at MWANZA this 15th day of November, 2024. W.M. CHUMA

JUDGE 12 The ruling delivered in court before Mr. Elias advocate for the applicants, Ms. Sabina Yongo State Attorney for the first to third respondent, and Mr. Alex advocate for 4th respondent this 15th day of November 2024. W.M. CHUMA

JUDGE 13