Prestige v TRA PO

1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 2228 OF 2025 (Arising from Comm. Appl. No. 164 of 2023; origin. Comm. Case No.130 of 2023) PRESTIGE INVESTMENT SA….……..………….……..…….……… APPLICANT

VERSUS THE COMMISSIONER GENERAL, TANZANIA REVENUE AUTHORITY…………………………………. 1ST RESPONDENT THE HON. ATTORNEY GENERAL………………………….………… 2ND RESPONDENT

RULING February 24th,2025 & April 4th 2025 Morris, J The applicant instituted the present application seeking for inter alia, the order of this Court directing the 1st respondent to facilitate and/or release 20685.61 MT of gasoline or any part thereof (the cargo) to him. The release of the cargo relates to execution of the Ruling and Drawn Order of this Court dated 8th December 2023 in Misc. Commercial Application No. 164 of 2023. The application at hand is by chamber summons preferred under section 2(3) of the Judicature and Application of Law s Act , Cap 358 R.E. 2019; 2 section 95 of the Civil P rocedure Code , Cap. 33 R.E. 2019 and Rule 24(1) and (3)(b) of the High Court (Com m ercial Division ) Procedure Rules , 2012. An affidavit of Boniface Mwikomo, the applicant’s Principal Officer is in support of the application. In response, the respondents filed a joint counter affidavit. In addition, they filed two consecutive preliminary objections (POs). The first PO was filed on 07.02.2025 and the subsequent one three days later, on 10.02.2025. The POs comprise of two points of law namely: one, the application is untenable and incompetent in law for suing the respondents who are/were not parties to the Commercial Application No. 164 of 2023 and Commercial Case No. 130 of 2023; and for want of issuance of the 90 days’ Notice of suing the Government in accordance with section 6(2)

of the Governm ent Proceedings Act , Cap. 5 R.E 2019. Two, this Court has no jurisdiction to determine this application by virtue of section 7 the (sic) Tax R evenue Appeals Act , Cap 408 R.E 2019. This ruling is in respect of the POs. The brief facts pertinent to this application are to the extent that: the applicant successfully sued Lamar Commodity Trading DMCC, Numora 3 Trading PTE Limited, KCB Bank Kenya Limited and Lake Oil Limited for breach of supply contract due to failure to release the cargo. This was via Commercial Case No. 130 of 2023 (the suit). In the pendency of the suit, Misc. Commercial Application No. 164 of 2023 (commercial application) was filed. Therefrom, on December 8th, 2023 the applicant successfully obtained the order of this Court against the said Lamar Commodity Trading DMCC and Numora Trading PTE Limited, for inter alia, release of the cargo. Thereafter, the applicant filed in this Court execution proceedings for attachment and release of the cargo. The application was granted. Consequently, via order of this Court dated June 21st, 2024; Mr. Joshua Mwaituka t/a Fosters and Company Limited (the court broker) was appointed to carry out the execution process. In exercising his duties, the court broker allegedly sought assistance of the 1st respondent herein because the cargo was custom bonded product in the storage of Lake Oil Limited under the

in-charge of the 1st respondent. Nevertheless, the applicant claimed further that the 1st respondent refused to cooperate and/or release the cargo on the ground that he was not involved in the suit and the commercial application. Hence, he was 4 obligated to file this application. In principle, determination of the present application on merit is subject of the outcome of the POs. Hearing of the POs was by written submissions. Both parties were under representation of learned counsel. For the applicant and respondents were Messrs. Seni Malimi, Advocate and Boaz Msoffe, State Attorney respectively. The respondents’ attorney commenced his submissions in respect of the first limb of the 1st PO. On this one, he argued that the incompetence of this application is attributed by the fact that the respondents are not parties to the commercial application (No. 164 of 2023) and suit (Comm. Case No. 130 of 2023). To support the foregoing legal contention, he cited the case of Salim Am our Diw ani v The Vice Chancellor Nelson M andela African I nstitution of Science and Technology and Attorney General, Civ. Appl. No. 116 of 2021 (unreported, at page 5 - last paragraph). Therein, the Court of Appeal held that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that and only with the leave of the

Court. Basing on that position therefore, he maintained that the applicant did not obtain leave of 5 the Court to amend the parties in the cases but rather opted to institute the current application against the respondents who did not take any part thereto. He went on to state that, it was evident from the chamber summons that the applicant was seeking assistance of this Court to execute the Ruling and Drawn Order of the Court dated 08.12.2023 in the commercial application. As such, the applicant cannot on her own motion, join the respondents at the execution stage without there being leave of the Court. To him such assistance can only be offered by the Court if it is sought against parties to the previous proceedings or leave has been obtained to seek against non-parties to the original proceedings. Further, he insisted that the applicant omitted the exact parties to original proceedings thereby curtailing their right of being heard. The respondent thus argued that, in as far as the respondents were strangers to both the commercial application and the suit; the application at hand was untenable and/or incompetent as the applicant cannot execute the said decisions against anyone but rather to the stated parties only. 6 Responding on this limb of objection, the applicant’s counsel maintained that this is an application in execution proceedings. Hence, there is no suit in this

application to warrant seeking leave of the court to amend the original suit. That, in this application the applicant is simply seeking assistance of the court to execute the court order dated December 8th, 2023 in the commercial application. Further, he contended that the cited case of Salim Am our Diw ani (supra) was not applicable and/or distinguishable to the present matter. Nevertheless, he was in agreement with the respondents that trite law is that a party cannot be joined at execution stage but the executing court can order any person; irrespective of whether he was part of the case or not, to assist and/or effectuate the execution of a court order or decree. He reasoned that, it was in such regard that the applicant brought the application under sections 2(3) of the Judicature and Application of Law s ; and 95 of the Civil P rocedure Code (both supra) which cloth this Court with wide powers in dispensation of justice, particularly in execution. I have considered the parties’ contention under this limb of objection dispassionately. The issue to be determined is whether the present 7 application is incompetent for joining the wrong or new parties and/or not abiding by the compulsive rules of procedure. It is apparent that these are separate proceedings from the commercial application. Herein, the respondents have not been joined in the commercial application but

they stand alone in a distinct matter. As such, the case of Salim Am our Diw ani (supra) is, as rightly argued by the applicant; distinguishable. The principle in that cited case bars alteration and/or addition of parties to same proceedings (matter) at any stage thereto. That is not the case herein as shown above. The present application is not, technically speaking, execution proceedings as argued by the applicant. When the application for execution was sustained by the Court, such proceedings became completely determined. All that is being pursued now is the implementation of the order therefrom. As such, these are a separate set of proceedings only that they. originate from the fully-determined application for execution. Furthermore, in order to effectuate execution of its Orders, it is not uncommon for the Court to appoint, direct, instruct, compel or enjoin other people who were not in the litigation before the Court to act accordingly. Lest, Orders of the Court such as garnishee, appointment of brokers, temporary injunctions to 8 agents or assignees of the parties would be worthless. Hence, this particular line of objection lacks merits and the same is overruled. Submitting on the second branch of the 1st PO, the respondent’s attorney argued that this application is in contravention of the dictates of section 6 (2) of the Governm ent P roceedings Act , Cap. 5 R.E 2019

(the Act ). To him, the Act is the relevant law when it comes to suing the Government and its authorities in civil proceedings, the 1st respondent inclusive. He asserted further that, in this application, the applicant decided to sue the respondents by way of a miscellaneous commercial application as if there is a pending main commercial case against them. The respondents were also assertive that, in the absence of the commercial case against them, this application falls within the meaning of suits against the Government governed by section 6 of the Act . They went on to argue that, it is the requirement of section 6 (2) of the Act which that; “No suit against the Government shall be instituted, and heard unless the claimant previously submits to the Government Minister, Department or Officer concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government and he 9 shall send a copy of his claim to the Attorney-General and the Solicitor General.” From the above provisions he submitted that, it is undisputed fact that, the applicant did not comply with above provision as he did not issue the required 90 days’ notice. To buttress his position regarding the meaning and scope of the word “suit”, Mr. Msoffe stated that all proceedings brought by one person against the other in a civil court pursuant to

the case of Tanzania M otor Services Ltd and Another v M ehar Singh t / a Thaker Singh , Civ. Appeal No. 115 of 2005 (unreported, at page 8). Therein, the Court of Appeal held that; “The term ‘suit’ is a very comprehensive one and is said to apply to any proceeding in a Court of Justice by which an individual pursues a remedy which the law affords him. The modes of proceedings may be various; but if the right is litigated between the parties in the Court of Justice the proceeding in (sic) is a suit. It is evident that the word "suit" is a word of comprehensive import and we subscribe to the view that the appellant's petition falls within the ambit of the word ‘suit’.” 10 He further made reference to the case of Tunu M w apachu and Others v National Developm ent Corporation and Another , Civ. Appeal No.155 of 2018 (unreported, at page 6). In the said case, it was held that; the definition of the 'suit' abundantly canvassed what was before the trial court in which the parties asserted their rights. Moreover, he cited the meaning of ‘suit’ per the Black ’s Law Dictionary, Bryan A. Garner, 8th Edition at page 4499 ; and M sk Refinary Lim ited v TI B Developm ent Bank Lim ited , Misc. Civ. Appl. No. 307 of 2020 (unreported, at Page 6) in the same context of proceedings by a party or parties against another in a court of law. Consequently, it was submitted further that this Court

would be persuaded to hold that this application is a suit and it ought to comply with the provision of Section 6 (2) of the Act which provision is coached in mandatory terms. As such, he implored this Court to follow the holding in the case of Em m anuel Titus Nzunda v Arusha City Council & 4 Others , Land Case No. 28 of 2020(unreported) that, the application was incompetent for the applicant’s failure to issue 90 days’ notice to the 1st respondent; and thus, strike it out. 11 Responding to this objection, the applicant’s counsel acknowledged the fact that the provisions of section 6 (2) of the Act apply to a person who wants to sue the Government and its institutions (like the 1st respondent) to issue the ninety (90) days’ notice of intention to sue. He however maintained that the present application is not a suit as there is no dispute between the parties herein. He went on to distinguish the applicability of the cases cited by the respondents. In addition, he cited the case of Ex im Bank (T) Ltd v National Furnishers Ltd , Misc. Land Appl. No. 995 of 2017 (unreported to support his argument that the present matter is not a suit. He thus finalised on this point that the question of ninety (90) days’ notice does not arise in the application at hand since the same is not a suit by making further reference to the case of Honourable Attorney General v Reverend Christopher M tik

ila , Civ. Appeal No. 20 of 2007 (unreported). Therein, it was held that; “It is eminently clear from these definitions that suits are proceedings of a civil nature in a court of law involving two or more parties on a dispute or claim which needs to be adjudicated upon, to determine or declare the rights of the disputing parties. The procedure for instituting and conducting such proceedings 12 in a court of law is governed either by the CPC or as provided under any other written law.” I have taken into account the rival arguments and the authorities cited by the parties’ counsel in this respect. There is no dispute that the 1st respondent is the Government institution and that, prior to institution of the application at hand, he was not served with the requisite notice by the applicant under section 6(2) of the Act . The applicant has raised a defence in this respect that the question of the said notice does not arise herein since the same is not suit. I desist from subscribing to the applicant’s position. It is for obvious reason. The definition of the term “suit” under the authorities cited above, is wide to include any proceedings. Circumstances of the present application fall squarely thereto. As such, the applicant was under obligation to issue the requisite notice short of which renders the application incompetent. It is the position of law that, where judicial

proceedings are against any Government institution and the reliefs or orders sought are likely to impose an obligation or confer a right upon the subject Government institution; the 90 days’ statutory notice becomes mandatory. That is the 13 spirit of section 6 of the Act . See for example, M oham ed Nazeer P arapuram and Another v Abdul Sam ad Am eena M am zil and Tw o Others , Comm. Case No. 021721 of 2024 (unreported, at pages 18 – 19). As indicated hereinabove, the applicant seeks orders of this Court against the 1st respondent who is the Government institution entrusted with the mandate over the customs management for the latter to inter alia, facilitate and/or release the cargo. If successful, this kind of relief will obviously impose obligation upon the 1st respondent to act accordingly. It is on such basis and in line with the authority cited above, I find it was imperative for the applicant to issue the subject notice accordingly. Moreover, it is in full appreciation of the fact that both respondents herein were not parties in the suit and/or the commercial application as alluded to above. For the foregoing analysis and reasons, this limb of objection is merited. Thus, the issue raised above is partly answered in the affirmative and partly in the negative. That is, the application is not incompetent for being brought against the respondents who were not parties to the

suit or commercial application; but it is on the basis that the respondents were not 14 put on the mandatory statutory notice before being included in the application at hand. Consequently, the Court hereby strikes out the application for want of the competence specified above. As determination of part of the POs (at this stage) suffices to defeat the application, I find no logical justification for the Court to delve into the remaining grounds of the POs. The application, therefore, stands struck out. Given the nature of this matter, where the applicant is in pursuit of realisation of the Court Order; each party shall shoulder own costs. It is so ordered. C.K.K. Morris Judge April 4th, 2025 15 Ruling delivered this 4th day of April, 2025 in the presence of Advocate Tazan Mwaiteleke for the applicant and Messrs. Boaz Msoffe and James Ikakinga, learned State Attorneys for the respondents. C.K.K. Morris Judge April 4th, 2025