panafrican energy tanzania ltd vs commissioner general tanzania revenue authority 2019 tzca 568 31 october 2019

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 449/20 OF 2019 PANAFRICAN ENERGY TANZANIA LTD.......................................... APPLICANT VERSUS COMMISSIONER GENERAL, TANZANIA REVENUE AUTHORITY.......................................... RESPONDENT (Application for stay of execution of the Decree of the Tax Revenue Appeal Tribunal at Dar es Salaam) (Twaib. Chairman. Bundala and Mwaibula. Memmbers) dated the 2nd day of May, 2017 in Tax Appeal No. 19 of 2015 EX PARTE ORDER 31* October & I5* November, 2019 LEVIRA. J.A.: This is an ex-parte application for stay of execution pending hearing inter parties before the Court. The Notice of Motion is made under Rule 4(2), 11(4), (4A), (5), (7) and 48(1) of the Tanzania Court of Appeal Rules, 2009 as amended, (the Rules). It is supported by the affidavit affirmed by Mwinshehe Said Kibao, the Finance Director of the applicant. This being an ex-parte application, only Mr. Gaudiosus Ishengoma, learned counsel for the applicant appeared on the date fixed for hearing. In his brief submission in support of the application, Mr. Ishengoma stated that the application is for ex-parte stay of execution order of the Decree of the Tax Revenue Appeals Tribunal of 2/5/2017 in Income Tax Appeal No. 19 of 2015. According to him, the reasons for ex-parte order are stated under paragraph 19 of the supporting affidavit. For ease of reference the said paragraph reads: "I state that despite being fu lly aware o f the existence o f the Applicant's pending Application fo r Review, the Respondent, on 7 October 2019\ issued a Demand Notice against the Applicant with reference Number TRA/L TD/101 -181 -316/MDM/l76 (served upon the Applicant on 9 October 2019) claiming, among others, paym ent o f TZS 645,612,560.60 on or before 14 October 2019. Attached and marked as Annexure FB3 is a copy o f the above mentioned Demand Notice from the Respondent to form part o f this affidavit. " Mr. Ishengoma submitted further that, the applicant has complied with all the requirements under Rule 11 of the Rules. She undertook to furnish security in case the application for review does not succeed. Thus, the learned counsel prayed for ex-parte order without 2 flhfl impnnfr** m* * m y O n» w rtor* tm *#** {tan ffttjrv FtJJ) w **h ha» been taoutf to the appear* On my part, tevtng gone through the nc«ce mc«on, the supporting affidavit, aM the annexed documents, and after hearing the •ubmisrton by the <pp6anTs counsel, I am of the considered *ew th* the appNcaoon is worthy of consideration try the Fi* C out than the Single JufOoe of the Court I w* explain. The applicant is seeking for an order for stay of execution penefcng hearing and determination of an application for review (Gvtl Application No. 339/20 of 2019) pending before this Court The sakJ application was flied as the applicant was aggrieved by the decision of the Court (Juma, a . #Mwarfja, JA., and Mziray, JA.) in CMI Appeal No. 192 of 2018 of 4 July, 2018. The question that follows Is, whether an order for stay of execution can be made pending an application for review as the provision of Rule 11 (3) a n d (7 ) of the Rules presupposes that an order for Stay of execution is intended to be granted pending appeal. Having considered all the drcumstances of this application, 1 refrain from making an ex-parte order for stay of execution. In terms of s Rule 60(1) of the Rules I hereby adjourn hearing of the application for determination by the Court on a date to be fixed by the Registrar. Order accordingly. DATED at DAR ES SALAAM this 31st day of October, 2019. M. C. LEVIRA JUSTICE OF APPEAL I certify that this is a true copy V)f the original.