SCENARIO
Suppose you are a legal counsel of local Mining Company. Sometime back in 1996, the law enacted to require the investing local company to pay loyalty of Tsh 10 million while foreign company were compelled to pay Tsh 5milion. In 2020, the administration of Local company think that the government approach on the royalty is in disfavor of local company thus they decides to file the case against government action on royalty setting. You are being a legal counsel;
(i) Discuss hierarchy of legal materials should be consulted for extracting supporting arguments.
(ii) In the course of searching supporting authorities, you find relevant materials which could be useful to the existing situation. Discuss techniques you will adopt to apply such previous material in the existing situation.
(iii) Suppose one says that, the decision to impose different royalty for local and foreign company is tenable. Elucidate on the basis of canons of statutory interpretation.
ANSWERS
HIERARCHY
OF LEGAL MATERIALS TO BE CONSULTED FOR EXTRACTING SUPPORTING ARGUMENTS
Principal
Legislations
These
are statutes enacted by parliament concerning mines and minerals in United
Republic of Tanzania. They are directives which give full control of whole
system of minerals. The following are some statutes which regulate various
matters concerning mines and mineral;
The Mining Act[1],
section 87(1) requires every authorized miner to pay to the government a
royalty on the gross value of minerals produced. This is among important
authorities because is a first step to show that royalties are creatures of the
law, as a lawyer, you cannot start arguing a matter without knowing a law which
establish such matter.
The Income Tax Act[2],
section 9(1) of the Act elucidates on income from investment, mining is a part
of investment, and the mode of paying tax is once per annum. The content of this
section is important on arguing when one makes reference to taxes required to
be paid under the laws of Tanzania.
The Written Law (Miscellaneous
Amendment) Act[3],
amends section 86 and 100 of The Mining Act[4]
and various other sections of The Income Tax Act[5],
amendments provides important elements that may be used by a lawyer in making arguments
concerning royalties. An issue of different royalties between foreign companies
and local ones may affect fair competition between investors.
Subsidiary Legislations
Parliamentary Proceedings
(hansards), are other legal materials to be consulted for extracting supporting
argument as far as the scenario of this question is concerned. Hansards are parliament’s
day to day records on discussions, contribution of MPs, decisions attended and
law enactment. Hansards may be used as reference materials for a lawyer to
construct arguments in a discussion or before court of law, hansards are
credible public documents.
Government Gazetteis
a periodical publication that has been authorized to publish public or legal
notices. Government gazette is a credible document which can be used as reference
materials in presenting legal topic, new enacted statute only comes to force when
get published on this gazette[6].This
is where all important government documents get communicated to the public.
Commission Reports also
form important part of legal materials that can be consulted as far as scenario
of this question is concerned. Commission reports are obtained results of
commission’s research on a particular matter which always get published for
public consumption. Reports are official documents, credible and can be used as
reference materials in legal presentation.
TECHNIQUES
TO ADOPT IN THE EXISTING SITUATION
Suit to challenge provisions of the
law,
a person or organization or any legally recognized entity may challenge the
provisions of the law before court of competent jurisdiction. If provisions are
un-certain, can be challenged before court and decision to struck out or retain
a provision will be entered by court.
Private bill on amendment of law
before legislature, it is allowed by permanent standing
orders to submit a request to amend a part of the law. As a legal counsel, I
would have advised local companies to submit private bill before parliament,
requesting amendment of un-certain law provision.
ELUCIDATE
ON BASIS OF CANONS OF STATUTORY INTERPRETATION
The Literal Rule[7],
this is the interpretation of statutes without adding any other meaning or
words to the provision. The words of the statutes must be read ordinary without
modifying them. The words in our scenario will remain the same that, royalty
for foreigners is “five million and ten
million for local companies”.
The Golden Rule,
is the same as plain meaning rule but it allows judges to modify the words of
law in case there is absurdity. The Golden Rule expressly specifies an occasion
when the court has to depart from the plain meaning, namely, where to adhere to
the plain meaning would lead to absurdity or absurd results. Judges can use their social and political
views when interpreting statutes.
In
this rule, “five million for foreigners and
ten million for local companies” judges may modify words regarding social
and political views.
Mischief Rule
is a principle used for the interpretation of a statute. This principle is used
by the courts or judges to determine the intention of the legislature. The goal
of this principle is to find mischief and defect in a statute and to implement
a remedy for the same. The courts while applying the principle tries to
determine the real intention behind the enactment.
“five million for foreigners and ten million
for local companies” in mischief may be given broad meaning to cover the
intention of the parliament.
Purposive approach, after a longtime use of three canons of statutory interpretation, purposive approach came with new idea. Purposive approach do not look literal of word of statute to develop a meaning, the purpose of the provision is the core element of this rule. This rule dis-agrees words modification but it encourage determination of purpose of the provision.
REFERENCE
BOOKS
Terence
Ingman, The English Legal Process,
8th Edn. Blackstone Press Ltd 2000 pp
237-242
Morris
& Read, The British Commonwealth: The Development of Its Laws and Constitution-
Uganda chapter 10
Cole
& Dennison, Tanganyika: The Development of Its Laws and Constitution,
Steven Sons London 1964 chs 2 & 5
Moris&
Read, Indirect Rule and Search for
Justice Essays in African Legal History, Clarendon Press Oxford, 1972
CASE
LAWS
Republic
v Omari s/o Kindamba&Oth[1960] EA 407 (T)
Ali s/o
MapulikoKailuv.Republic[1976] LRT.37 at 147 Kisanga J.
ONLINE
SOURCES
https://definitions.uslegal.com/m/mischief-rule/
http://e-lawresources.co.uk/Smith-v-Hughes
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