20120228 TZCA Dar es Salaam

C,,v/4R6 I C.1 ·1)' ~ /V Off Ge- ~ lh2'f1&:J{_ 1 ~ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MBAROUK, J.A., MASSATI. J.A •• And ORIYO, J.A.} CIVIL APPEAL NO. 58 OF 2011 KOTRA COMPANY LIMITED ................................................ APPELLANT VERSUS THE COMMISSIONER GENERAL TANZANIA REVENUE AUTHORITY •••••.•.••••••••.•••••••••••••••••• RESPONDENT (Appeal from the judgment and decree of the Tax Revenue Appeals Tribunal at Dar es Salaam) ( Mataka. (Deputy - Chairperson. ) dated the 31 st day of March, 2011 in Appeal No. 19 of 2010 RULING OF THE COURT 27th February, & 8 th March, 2012 MASSATI, J.A.: This ill fated appeal, was fixed for hearing on 2ih February, 2012. For reasons that will be apparent soon, it could not proceed to be heard on merit. Before rvlL Melkizedeck Lutema, learned counsel for the appellant began to argue the appeal, we asked him to look at the notice of appeal, and address us if it complied with Rule 83(31,.QLthe <;:: Tanzania Court of Appeal Rules, 2009 (the Rules). Mr. Lutema 2 candidly conceded that it did not because while the notice indicated that it intended to appeal against only part of the decision, that part, was not indicated, which was contrary to Rule 83(3) of the Rules. However, he submitted that this defect was curable under Rules 2 and 111 of the Rules, and so prayed that he be given leave to amend the notice. He also prayed that should the Court consider the defect incurable, he should not be condemned to costs. The respondent was represented by Mr. Salvatory Switti learned counsel. His quick response was that the notice of appeal was obviously defective, and the defect, infected the record of appeal. He referred us to Rule 96(i)(j)of the Rules, which mentions a notice of appeal as one of the essential documents in the record. There is no dispute that Rule 96(1)(j) of the Rules, demands that the notice of appeal must be contained in the record of appeal. - , , r I r Ir r ,.. ,,. - .. ' ···•· . - •· -•-- .. - There is also no dispute that in . civil proceedings, , r a notice of appeal is lodged under and must comply with Rule 83(3) and (6) which relate to the Form of the Notice. Rule 83(3) provides (3) Every notice of ,appeal shall state whether it is intended to appeal ,/ i 3 against the whole or part only of the decision and where it is intended to appeal against part only of the decision shall specify the part complained of, shall state the address for service of the appellant and shall state the names and addresses of all persons intended to be served with copies of the notice. " In the present case, the appellant's notice of appeal reads as follows:- IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM IN THE MATTER OF AN INTENDED APPEAL NUMBER _ _ OF 2011 BETWEEN KOTRA COMPANY LTD ----------------------------------------- APPELLANT AND THE COMMISSIONER GENERAL, TANZANIA REVENUE AUTHORITY------------------------- RESPONDENT (Appeal from the Judgment and Decree of the Tax Revenue Appeals Tribunal at Mwanza dated the 31 st day of March 2011 (Honorable Mataka, Deputy Chairperson) in Appeal Number 19 of 2010) ,. NOTICE OF APPEAL TAKE NOTICE THAT KOTRA COMPANY LIMITED, being dissatisfied with the decision of Honourable Mataka, Deputy Chairperson given at 'j 4 Dar es Salaam on the 31 st day of March 2011 intends to appeal to the Court of Appeal of Tanzania against part of the said decision as decided: It is intended to serve copies of this notice on: The Commissioner General Tanzania Revenue Authority, Sokoine Drive P.O. Box 11491 Dar es Salaam. Dated at Dar es Salaam this 8th day of April, 2011. ADVOCATE FOR THE APPELLANT It is clear therefore that although the intention indicates that it is intended to appeal against only part of the decision, that part is not specified as dictated by Rule 83(3). It cannot therefore be doubted that the notice of appeal is defective in substance. The question is, what is the effect of that defect ? 5 The Court was faced with an almost identical situation in FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER (1997) TLR. 41 and it had to consider the effect of non - compliance with Rule 76(3) of the Court of Appeal Rules (1979) (the old Rules) and it said: ''Failure by a party to state whether the intended appeal is against the whole, and part only of the decision does not in any way prejudice the opposite side " and further down, concluded: "For these reasons we think that the failure to comply strictly . with the provisions of ·---~····-•,··~ -- . ···- ·-···-·-· ~-·~~ · · - - - Rule 76(3) was not fatal ............... .. although of course we stress the -- importance of complying with the Rules. " Rule 76(3) of the old Rules is in pari materia with Rule 83(3) of the Rules, and we don't think it would admit of any further discussion. I 1· 6 In conclusion, we think that since the respondent has not complained that it was prejudiced by the. omission . the appellant's . . failure to comply strictly with Rule 83(3) of the Rules is not fatal. The . . -· . ~ .. . ... --· . preliminary observation flJade by the Court will therefore end there. The appeal shall therefore be set down for hearing on merit. No order as to costs. It is so ordered. th DATED at DAR ES SALAAM this 28 day of February, 2012 M.S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL