IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

MISC. COMMERCIAL APPLICATION NO. 331 OF 2015

(ARISING FROM COMMERCIAL APPEAL NO.1 OF 2014)

TANZACOAL EAST AFRICA LIMITED APPLICANT

VERSUS

THE MINISTER FOR ENERGY

& MINERALS RESPONDENT

RULING

Mansoor, J:

Date of RULING- os» MAY 2016

The Applicant filed for an application for leave to appeal to the

Court of Appeal against the decision of this Court by

Makaramba J, delivered by Msumi DR on 08th December

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2015. The Application is supported by an affidavit of Mr

Gaspar Nyika, the Advocate for the Applicant.

The Counsel for the respondents objected to the granting of

leave stating that leave could be granted by this court only if it

was satisfied that the case involved a substantial question of

law which could arise for consideration of the Court of Appeal,

and that the Counsel ought to have elaborated why he said in

paragraph 6(a) of his Affidavit in support of the Application as

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to why he is saying that Hon Judge Makaramba failed to

interpret or apply Section 47 (a) of the Mining Act.

It was contended by Counsel Nyika, for the appellants that

whenever a question of law was raised whether on

interpretation or application or default of the law that by itself

that question of law must rest with the Court of Appeal for

consideration.

The appellants in their application for leave filed in this Court

questioned the correctness of the conclusion of the High -

Court. They asserted that the Learned High Court Judge erred

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in law and fact in holding that the applicant was in default of

Section 47 (a) of the Mining Act 2010 by failing to note that the

development of the Mining Area envisaged by section 47 (a)

was subject to the programme of Mining operations which in

this case did not exists; the Judge erred in law to take

additional evidence to confirm whether a programme of Mining

Operations existed; that the Judge erred in law and in fact by

holding that the Applicant was in default of Section 47(a) of

the Mining Act.

There is no scope for granting leave unless two conditions are

satisfied: (i) the case should involve a substantial question of

law worth the consideration of the Court of Appeal; and (ii) that

the grounds raised must be of issues of general importance, or

novel points of law or prima facie case necessitating the

intervention of the Court of Appeal. Buckay vs Holmes ("1926)

All ER No. 90 at page 91.

The rule laid down by the Courts in various decisions is that

an appeal shall lie to the Court of Appeal from any judgment,

decree or final order of the High Court, whether in a civil,

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criminal or other proceeding, if the High Court, during the

stage of granting leave is satisfied that the case involves a

substantial question of law as to the interpretation of the law,

and that the reasons advanced as grounds of appeal raises

questions of general importance or novel points of law, and of

course not issues of facts or evidence. Another, may be that,

the facts of the case are suitable as a foundation for

determining some question of general principle or general

importance. Conversely, the fact that leave to appeal is given

is not of itself an indication that the judgments below are

thought to be wrong. It may well be that leave is given in order

that the relevant law may be authoritatively restated in clearer

terms. There is a necessity of restating the application of

Section 47(a) of the Mining Act, 2010 in clear terms as shown

in the grounds of the appeal stated by the applicant

warranting the intervention of the Court of Appeal.

This Court considers the grounds advanced by the Applicant

as sufficient grounds for appeal and are fit grounds for -

exercising the court's discretionary jurisdiction to grant leave

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to the Applicant to appeal to the Court of Appeal, as the

grounds stated are grounds of novel points of law, they are

grounds of issues of general importance or novel points of law

necessitating the intervention of the Court of Appeal.

Based on the above reasorung, the Application is therefore

granted. Costs to follow the events in the appeal itself.

DATED at DAR ES SALAAMthis 06TH day of MAY, 2016

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MANSOOR

JUDGE

06TH MAY 2016

51Pagc