Misc

IN THE HIGH COURT OF THE UNITED RE PUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM MISC.LAND APPLICATION NO. 6009 OF 2024 MORNING SIGHT INVESTMENT COMPANY LIMITED.......................................... APPLICANT VERSUS REGISTRAR OF TITLES.......................................... 1st RESPONDENT THE HONOURABLE ATTORNEY GENERAL........ 2nd RESPONDENT THE COMMISSIONER GENERAL TANZANIA REVENUE AUTHORITY.................... NECESSARY PARTY RULING Date of last Order: 28/11/2024 Date ofJudgment: 29/11/2024 LALTAIKA, J This ruling addresses a two limbed preliminary objection (PO) raised by the Respondent that: (i) the dispute is tax-related, and therefore falls under the jurisdiction of tax dispute settlement forums and (ii) that the suit is time barred. The PO was argued by way of written submissions with Mr. Ayoub Sanga, learned State Attorney and Mr. Gaspar Nyika, Page 1 of 12 learned Advocate penning the submissions for and against the PO, in that order. The next part of this Ruling is a summary of their submissions, my analysis of the law and the verdict. Mr. Sanga started his submission by emphasizing that the issue of jurisdiction must be determined at the earliest stage of a case, as it touches on the powers for which a court was created. He referenced the case of Sospeter Kahindi vs Mbeshi Mashini (Civil Appeal No. 56 of 2017) and Shyam Thanki and Others v. New Palace Hotel (1971) 1 EA 199 to buttress his argument. Mr. Sanga further submitted that the Applicant's application was based on Section 99 of the Land Registration Act (supra), seeking to rectify the property register by removing a charge created by the Necessary Party, but noted that the Necessary Party is empowered to create charges over property under the Tax Administration Act, particularly Section 61, which allows the Commissioner General to create a charge for unpaid tax. He also pointed out that the Applicant should have been aware of the tax disputes resolution mechanism provided under the Tax Administration Act and the Tax Revenue Appeals Act, which vested exclusive jurisdiction in tax courts such as the Tax Appeals Board, Tax Page 2 of 12 Appeals Tribunal, and the Court of Appeal. He argued that the Applicant's claim challenging the creation of the charge by the Commissioner General should have been pursued through the tax dispute resolution mechanisms rather than through a civil suit. Mr. Sanga referred to the case of Eric Kabendera vs Vodacom Tanzania Public Limited Company (Civil Case No. 12799 of 2024), where the importance of following a special forum was emphasized, and further cited Commissioner General Tanzania Revenue Authority & Another vs Milambo Limited (Civil Appeal 62 of 2022), which affirmed that civil courts should not entertain matters for which a special forum has been established unless the aggrieved party can show that no remedy is available in the special forum. In closing, Mr. Sanga argued that the Applicant's complaint fell outside the competence of the High Court, as the dispute concerned the exercise of powers under tax laws, which should be addressed through the exclusive tax dispute forums. He concluded that the application was misplaced and should be dismissed, as the proper forum for resolving tax disputes had not been followed. Regarding the second preliminary objection on time limitation, Mr. Sanga emphasized that in order to dispose of an objection on the basis of Page 3 of 12 limitation and jurisdiction, reference must be made to the pleadings and annexures attached thereto. He cited the case of Moto Matiko Mabanga v. Ophir Energy Pic & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599 (22 October 2021), where the Court held that a preliminary objection based on a time bar could not be taken abstractly, but had to be based on facts clearly evident in the pleadings, without the need for additional evidence. On the issue of limitation, Mr. Sanga referred to Section 5 of the Law of Limitation Act [CAP 89 R.E. 2019], which dictates that the right of action accrues on the date the cause of action arises. He explained that the Applicant's case, which sought relief under Section 99 of the Land Registration Act [Cap 334 R.E 2019], was governed by the Law of Limitation Act, which set a time limit of sixty days for such applications. He referred to the case of Kabula Azaria Ng'ondi & Others v. Maria Francis Zumba Msolopa Investments Limited (Civil Appeal No. 248 of 2020) [2024] TZCA 267 (15 April 2024), to buttress his argument. Mr. Sanga further argued that the cause of action in this case arose in 2021 and 2022, as indicated by the Applicant's affidavit and the counter-affidavit, which confirmed that the Applicant was aware of the issue at those times. He cited Ali Shabani and 48 Others v. Tanzania Page 4 of 12 National Roads Agency and The Attorney General (Civil Appeal No. 261 of 2020), which confirmed that time for a limitation objection starts when the party becomes aware of the relevant act, decision, or omission. Mr. Sanga continued to analyze the annexures attached to the pleadings, which showed that the Applicant was made aware of the dispute over the tax charge on the property in 2021 and 2022, thus affirming the start of the limitation period. Mr. Sanga referred to Fortunatus Lwanyantika Masha & Another v. Claver Woshi Limited (Civil Appeal No. 144 of 2019), to reiterate the principle that time-barred suits must be dismissed, regardless of the circumstances. Concluding his submission, Mr. Sanga reiterated that the time limitation had passed, and as a result, this Court had no jurisdiction to entertain the matter. He urged the Court to dismiss the case as mandated by the law and previous judicial precedents. Mr. Nyika, Counsel for the Applicant, submitted that the Respondents’ arguments in support of the objections were misconceived. He acknowledged that jurisdiction over tax disputes under laws administered by the Tanzania Revenue Authority (TRA) is vested in bodies established under the Tax Revenue Appeals Act, Cap. 408 R.E. 2019, Page 5 of 12 and that the Tax Revenue Appeals Board is a body of first instance according to section 53 of the Tax Administration Act, Cap. 438 R.E. 2019. He further stated that the jurisdiction of the court is statutory and cannot be conferred by the parties or advocates. However, he argued that the matter before the Court was not a tax matter, as it did not arise from the revenue laws administered by the Tanzania Revenue Authority. Instead, Counsel asserted, it concerned the powers of the 1st Respondent to register charges against properties, specifically whether it was correct for the 1st Respondent to register a charge against a property that already had a prior registered charge. Mr. Nyika emphasized that the issue was a land matter, not a tax dispute, and the application was made under section 99 (l)(b) and (f) of the Land Registration Act (supra). He explained that the jurisdiction to consider and determine an application for rectification of a land register was vested solely in the High Court and not in the Tax Revenue Appeals Tribunal or the Board, as suggested by the Respondents' Counsel. He argued that the issue was whether it was correct for the 1st Respondent to accept the application and register the charge, which fell within the jurisdiction of the High Court under the LRA. Page 6 of 12 Mr. Nyika addressed the Respondents' reliance on several cases to support their position. He referred to the case of Prosper Ndesokia and another v. Commissioner General Tax Revenue Authority (Misc. Land Case Application No. 973 of 2017), where this Court had acknowledged that a matter involving the sale of land by the TRA Commissioner General was a land matter. However, Mr. Nyika reasoned, the Court had declined jurisdiction because the matter involved the execution of an order by the Tax Revenue Appeals Board. Mr. Nyika pointed out that the facts in Prosper Ndesokia were distinguishable from the current case, as the Applicant was not challenging the Commissioner General's decision but was seeking rectification of the land registry, a matter within the High Court's jurisdiction. He also cited Business Printers Limited v. Commissioner General of Tanzania Revenue Authority and another (Misc. Land Application No. 522 of 2021), where the applicant had brought an application before the High Court regarding a distress warrant, not the Board, showing the proper jurisdiction for land-related matters. Mr. Nyika further distinguished the case of Tanzania Revenue Authority v. Tango Transport Company Ltd (Supra), where the Court of Appeal had ruled that a tax matter should be handled by the Board. He Page 7 of 12 argued that the present application did not involve a tax matter, as the Applicant was seeking rectification of the land registry and not challenging any tax recovery action. Regarding the second preliminary objection, Mr. Nyika disagreed with the Respondents' submissions, which he deemed misguided. He referred to section 7 of the Law of Limitation Act, (supra) which provides for a continuing wrong, meaning that a fresh period of limitation begins each time the wrong continues. He argued that the wrong, in this case, was the incorrectly registered charge, which continued to affect the Applicant's property. The Applicant had pleaded that the breach was continuing, and this issue could only be determined upon hearing the merits of the application. Mr. Nyika concluded by submitting that the continuing wrong created a fresh cause of action every day the charge remained unrectified in the land registry. He urged the Court to overrule the preliminary objections with costs and allow the application to proceed on its merits. In his rejoinder submission, Mr. Sanga emphasized that this was a tax matter. He referred to paragraphs 2.1, 2.2, and 2.3 of the Reply Submission, pointing out that the Applicant did not dispute the existence of special forums for tax matters, nor the requirement that every tax Page 8 of 12 dispute must be submitted to tax dispute settlement forums. The only dispute, according to Mr. Sanga, was whether this particular dispute qualified as a tax dispute under the tax law. He went on to highlight that, according to the Chamber Summons and Affidavit in support of the application, the Applicant's case hinged on seeking an order for the 1st Respondent to rectify the register of the disputed property by removing a charge registered by the Necessary Party. He emphasized that the Necessary Party, empowered by the Tax Administration Act, had the authority to create charges over land or buildings in the case of unpaid taxes, and such charges were enforceable by the Registrar of Titles under Section 61 of the Act. Mr. Sanga argued that the Commissioner General of the Tanzania Revenue Authority, in creating the charge, was exercising powers vested under tax law, and such actions were to be challenged through the proper tax dispute settlement procedures. He noted that the Applicant was attempting to mislead the Court regarding the powers of the 1st Respondent to register a charge, stressing that the law, particularly Section 61 of the Tax Administration Act (supra), permitted the registration of tax charges, regardless of whether there was a prior charge on the property. Page 9 of 12 He also addressed the Applicant's submissions on time limitation, stating that according to Section 5 of the Law of Limitation Act, the right to bring an action arose when the cause of action occurred. He criticized the Applicant's reliance on Section 7 of the Law of Limitation Act, arguing that it only applied to continuing breaches of contract or tort, which was not relevant in this case. Mr. Sanga concluded his submission by reaffirming that the case was time-barred and that the Court could not entertain the matter due to the expiration of the time limit. He prayed for the dismissal of the application with costs, emphasizing that the Court lacked jurisdiction to adjudicate on the matter. I have dispassionately considered the rival submissions. The issues for my determination are: 1. Whether the dispute falls within the realm of tax matters or should be adjudicated by this Court. 2. Whether the dispute is time-barred based on the Law of Limitation Act [Cap 89 R.E 2019]. Starting with jurisdictional challenge, the Respondent submitted that this dispute involves tax-related matters and should, therefore, be Page 10 of 12 adjudicated under the Tax Administration Act. The Applicant, however, argues that the dispute concerns the legality of the charge under the Land Registration Act, and thus, falls within the Court's jurisdiction. After a careful review of the arguments, I am persuaded by the Mr. Sanga's reasoning. See TRA v. Lusekelo & Another (supra). The creation of a tax charge, as challenged by the Applicant, involves a tax enforcement action and not a challenge to the title of land or the registration process under the Land Registration Act. Therefore, it is my considered view that the Applicants claim must be pursued through the tax dispute settlement mechanisms outlined in the Tax Administration Act, and this Court lacks the jurisdiction to entertain it. Coming to the second preliminary objection on time limitation the Respondent forcefully argued that the Applicant's claim is time-barred and the Court lacks discretion to extend the limitation period without valid legal grounds. In response, the Applicant contends that the action involves a continuing breach, as articulated in Section 7 of the Law of Limitation Act, which states that the limitation period runs from the date of the last occurrence of the breach. Page 11 of 12 After considering the submissions and relevant case law, I am of the view that the Applicant's reliance on Section 7 of the Law of Limitation Act is misplaced. The Applicant is not alleging a continuing breach in relation to the registration of the charge but is instead challenging the initial creation and registration of the charge. The limitation period for such actions, as stipulated under Part III of the Law of Limitation Act (supra) is clear, and the claim in this case was filed well after the expiration of the prescribed period. I entertain no doubt in finding that the suit is time- barred. As correctly argued by Mr. Sanga, this Court is, therefore, precluded from considering it. In the upshot, both limbs of the preliminary objection are upheld, and the Application is hereby dismissed. I make no orders as to cost, for lack of jurisdiction. It is so ordered. E.I. LA LTAl KA fcf ffiC? 'ii \ W JUDGE ? 29/10/2024 Court: Ruling delivered in Court Chambers this 29th day of November 2024 in the presence od Ms. Eunice Mtiro, learned Advocate, Counsel for the Applicant and the Principal Officer of the Applicant. Page 12 of 12