Kigezi Steel Company Limited v Attorney General (Miscellaneous Cause 139 of 2023) [2025] UGHCCD 23 (14 February 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

#### **MISCELLANEOUS CAUSE NO. 0139 OF 2023**

**KIGEZI STEEL COMPANY LIMITED :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

**ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### *RULING*

The Applicant brought this application under Article 42 of the Constitution, Section 33 and 37 of the Judicature Act as amended, Rules 3 (1) (a) and 6 (1) of the Judicature (Judicial Review) Rules, 2009 and Section 96 and 98 of the Civil Procedure Act for the following reliefs by way of judicial review;

- a) An order of certiorari quashing the decision of the Minister of Energy and Mineral Development cancelling the mining lease license of the applicant illegally and without authority or knowledge of the applicant. - b) A declaration that the respondent's acts of cancelling the applicant's mining license on the suit project was illegal, irregular and improper. - c) A declaration that the decision of cancelling the applicant's mining license was irrational, irregular and illegal. - d) A permanent injunction restraining the respondent or any other party from revoking the applicant's license. - e) A declaration that all the transitions that were entered into by the respondent or any other party regarding mining on all the projects that were covered by the applicant's license are illegal and be set aside.

- f) An order of prohibition doth issue restraining the respondent and any other person from revoking the applicant's mining license for the suit project. - g) An order for mandamus compelling the respondent to respondent to restore and validate the applicant's mining license. - h) An order that the respondent pays the costs of this application. - i) A declaration that any sale, issuance of a new mining license to any other person than the applicant or transfer of the applicant's mining rights that happened after the revocation of the applicant's license are illegal, unlawful and void. - j) Declaration that the respondent exercised her quasi-judicial powers illegally, unreasonably, irregularly and in total disregard of the procedure. - k) A declaration that the applicant was not afforded a right to fair hearing before the respondent revoked her mining license. - l) That the time within which to file this application be enlarged. - m) Costs of the suit be provided for.

The grounds in support of this application were stated very briefly in the Notice of Motion and in the affidavit of Hon Rukondo B. Serapio which is detailed but briefly are that;

- 1. The applicant is the holder of a mining lease ML0594 which was granted for 21 years. The applicant was licensed to develop and mine iron ore in Kabale District and has complied with all the mining laws of Uganda. The Minister of Energy and Mineral Development on 6th April, 2023 illegally, unfairly and unreasonably cancelled the applicant's mining lease. The Minister failed to follow the established principles of natural justice. - 2. That on 6th April 2023 the minister through a letter cancelled the Mining lease, based on reasons that were unjustified, false and were never raised in the first letter which they had responded to.

- 3. That the Minister of Energy unreasonably, illegally and irregularly cancelled the applicant's lease since the first reason was for non payment of lease by the applicant. - 4. That while we were informed about the issue of nonpayment of AMR, we were not afforded an opportunity to answer back on the grounds raised by the Minister as the basis of cancellation.

The respondent opposed this application and filed an affidavit in reply through Agnes Alaba, the Commissioner for the Mines department in the Ministry of Energy and Mineral Development who stated as follows;

- 1. That the application is barred by statute, misconceived and an abuse of court process. She further deponed that the applicant was granted a mining lease on the 13th June 2011 to develop and mine, produce and process ore in Kabale district in accordance with the Mining Act, 2003 and the Regulations thereunder. The default notice dated 28th November, 2018 was furnished on the applicant as required by the law highlighting several breached and violations of the terms of Mining lease and requiring the applicant to remedy the said breached within a specified timeframe and to show cause why the lease should not be cancelled. - 2. That on the 26th February, 2020, the mining lease granted to the applicant was cancelled by the Commissioner for Geological Survey and Mines Department for noncompliance with the terms and conditions set out in the mining lease with grounds being failure to pay annual mineral rent amounting to Ugx. 97,980,000/= contract to the section 106 of the Mining Act, failure to observe all the working obligations contrary to section 50, failure to comply with the approved mining operations plan, failure to commence active operations within one year from the grant of the lease, demarcate and keep demarcated the lessee's mining area, submit an environment monitoring plan, keep and submit periodic, complete and accurate statements and returns of operations relating to mineral lease, submit audited annual financial reports to the commissioner and submit a revised and up to date feasibility study report amending the lessee's mining operations plans.

- 3. The applicant contested the cancellation and applied for administrative review to the minister who following the hearing on the 18th September, 2020 set aside the commissioner's decision to cancel the lease on conditions that the applicant submits revised mining operation plan, revised feasibility study report, all relevant documentation including a registered MOU for the funding of the project and payment plan for Ugx. 128,680,000/= arrears of annual mineral rent. - 4. The applicant submitted a payment plan for the outstanding rent dues of Ugx. 97,980,000/= for a period of June 2017/2018 and 2019/ 2020 with a commitment to make a full payment within six months of the moratorium period, registered an MOU with Ellade S.r.l of Italy as the source of funding for the project, a detailed report and business plan for the implementation of the project, a mine development plan for the operation of the project, a mine development plan for operation of the project. The moratorium period was effective 18th September, 2020 and expired on 18th March, 2021. - 5. When the team from the Ministry of Energy and Mineral Development conducted a filed visit on 11th February, 2021 with the objective of assessing whether the applicant had complied with the conditions set out above, they found that no activity was being undertaken by the applicant on the site. They further found piles of iron ores and no equipment or workers and were informed by the applicant's representatives who attended the site visit that the piles had been stationery for two years. - 6. It was established that the applicant was not submitting periodic returns, the last payment at the time was made on the 3rd June, 2017 and the applicant was in default of Ugx. 92,100,000/= in annual mineral rent fees for the years 2018/2019, 2019/2020 and 2020/2020. After the field visit, it was observed that the applicant was not complying with its own payment plan and continued to default and was non complaint, contrary to sections 50, 106 and 90 of the Mining Act. It was further observed that the applicant did not have adequate financial resources to carry on effective mining operations consequently a recommendation to cancel the mining lease ML 0594 in accordance with section 90 of the Mining Act.

- 7. On the 3rd January, 2023 pursuant to section 90 of the Mining Act, the Ministry of Energy and Mineral Development issued a notice of cancellation of mining lease to the applicant and required the applicant to remedy the identified default within 30 days and to show cause why the mining lease should be cancelled. The applicant met officials from the Ministry of Energy and Mineral Development on 28th January, 2023 where it was accorded an opportunity to be heard and address the cancellation and further its letter dated 30th January, 2023 which were considered by the Minister. - 8. The minister found that the applicant had failed to show adequate cause why the mineral lease should not be cancelled and revoked the same pursuant to section 159 of the Mining and Minerals Act on the 6th of April, 2023. The actions and decision of the respondent leading to revocation of the applicant's mining lease was not illegal, unreasonable, biased and irrational as alleged.

The parties raised two issues for court's determination which are as follows;

- *1. Whether the cancellation of the mining license was lawful?* - *2. What remedies are available to the applicants?*

The respondent also raised two preliminary objections which I shall dispose of first before I can determine this application on its merits.

- *1. Whether the application was filed before this Court in time?* - *2. Whether the application is amenable to judicial review?*

The applicant was represented by *Mr. Turigye Harold* whereas the respondent was represented by *Mr. Onyango David*.

At the hearing of this application the parties were advised to file written submissions which I have considered in the determination of this application. **Preliminary Objections**

# *Whether the application was filed before this court in time?*

The respondent's counsel submitted that Rule 5 of the Judicature (Judicial Review) Rules as amended requires that the application must be filed within 90 days. In the instant case, the decision of the Minister was communicated on 6th April 2023 and the Application was filed on 1st September 2023, five months after the decision. In the affidavit in reply sworn by Agnes Alaba, she testifies to the point in paragraph 4 thereof that the Application is barred by statute.

Counsel while relying on the decisions in *Stop and See vs Tropical Africa Bank and Sheena Imra Ahmed vs Edmond Musoke MA No. 406/2020* submitted that the requirement is mandatory and the law to this effect is that where time for filing has lapsed, a party must apply for and obtain leave to file out of time.

He stated that in the instant case, the mandatory leave was not obtained, and therefore this Application is incompetent. The respondent therefore prayed that this Honourable Court holds so.

The applicant submitted that it filed an omnibus application where it sought for orders that the time within which to file this application be enlarged under prayer "I" in the notice of motion. Counsel stated that the delay, if any was occasioned by the applicant's attempt to exhaust all the local remedies, by appealing to the minister to revisit her decision but in vain. He stated that as per the applicant's affidavit and as corroborated by the affidavit in reply, the Minister for Energy and Mineral Development issued a notice of cancellation for the mining lease No. 0594 on the 3rd January, 2023. That on the 30th January, 2023, the applicant responded to notice of cancellation stating that stating that the cancellation was based on nonexisting reasons, furnishing proof of payment and compliance with the mining lease terms and conditions.

Counsel submitted that the applicant kept pushing for an official response to the response dated 30th January, 2023 but none was availed and it was only in July that they were made aware that the minister had made a final decision revoking the mineral right. He therefore invited court to note that there was no evidence from the respondent that the letter dated 6th April, 2023 was ever served on the applicant and it was only made aware of the decision in July, 2023.

Counsel relied on Rule 5 of the Judicature (Judicial Review) Rules as amended which provides that an application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application first arose. He submitted that the applicant only knew about the grounds of the application when he received the final notice of cancellation in July. He submitted that Rule 5 also grants power to the court to consider that there is good reason for extending the period within which the application shall be made and prayed for court to invoke these powers, enlarge the time, and hear the application on its merits since there is a plausible reason that the applicant was only made aware of the decision of the minister way later than when it was first issued on 6th April 2023.

He further relied on the decision in *Open Forum Initiative (Tofi) vs Attorney General and Uganda Revenue Authority (Miscellaneous Application No. 77 of 2022,* court explained the import and the application of Rule 5 and its exceptions. He therefore submitted that the days count from when the Applicant was made aware of the decision and the respondent having failed to communicate the decision cannot be a beneficiary to a breach it orchestrated. He therefore that the preliminary objection be dismissed and the matter heard on its merits.

## *Analysis*

## *Rule 5 (1) of the Judicature (Judicial Review) Rules 2009* provides that;

*An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of the application FIRST arose, unless the court considers that there is good reason for extending the period within which the application shall be made.*

The applicant in its affidavit under paragraph 7 stated that the Minister for Energy and Mineral Development cancelled the mining lease No. 0594 on the 6 th of April, 2023. It is from this date that the grounds for this application for review first arose and should have been filed within 3 months from this date with the last date being 6 th July, 2023. This application was filed on the 1 st September 2023, clearly outside the prescribed time period for an application for judicial review. It is clear from the pleadings that the application was out of time by the time of filing the application for judicial review.

The applicant submitted that it filed an omnibus application where among others, it sought for orders that the time within which to file this application be enlarged under prayer "I" in the notice of motion. A thorough look at the pleadings indeed shows that the applicant sought for enlargement of time within which to file this application. However, the applicant did not provide any reasons whatsoever for the court to determine if it should exercise its discretion by extending the time for this application under Rule 5. Rather, counsel for the applicant resorted to making submissions wherein he gave evidence at the bar as to why the application should be extended. The reasons advanced for the delayed filing should have been advanced at the time of applying for leave to extend the time of filing for judicial review and not during submissions.

The rule of laches is not a rigid rule which can be cast in a straight-jacket. The courts do not follow a rigid, but a flexible, measure of delay. It should be emphasized that the rule that the court may not enquire into belated and stale claims is not applied in a rigid manner. However, the court can only exercise its discretion in these circumstances only if presented with good reason as provided for under Rule 5, which the applicant did not raise in its application.

It is trite law that time limits set by statutes are matters of substantive law and must be strictly complied with. See: *IP Mugumya vs Attorney General HCMC No. 116 of 2015, Uganda Revenue Authority v Uganda Consolidated Properties Ltd CACA 31 of 2000.* Their overriding purpose is that litigation shall be automatically stifled after a particular length of time, irrespective of the merits of the particular case. The court ought not to consider stale claims by persons who have slept on their rights. Any application brought by way of judicial review cannot be entertained if presented after lapse of a period fixed by limitation legislation. The court could have exercised its discretion to extend the time depending on the facts to determine whether to extend the time to file for judicial review depending on the reasons on how the delay arose which were not presented before this court.

A court would not have the jurisdiction to entertain an application for leave outside the limitation period in absence of an application for extension of time or application for leave to file the application out of time. This is in view of the settled rule that a court does not have the jurisdiction to hear an application for judicial review application which is filed out of time.

This is preliminary objection is therefore upheld.

For the reasons herein above stated this application fails for being time barred and there is no need to delve into the main issues raised for determination. The applicant is at liberty to seek leave by setting out the main grounds for the delay.

This application is dismissed with no order as to costs.

I so Order.

*SSEKAANA MUSA JUDGE 14th February 2025*