20120704 TZCA Dar es Salaam

·, ' ,-«•• ---~...•· ...,....,..~~•-•·•' . ,:i-,is~~;f<,J'.J,','AA;;il>f.i'i;lil#l1i,''Oil/0¥'iU¾\)~;:;il>Affw~~•~~li,i~.:&;i,;;...::-,1··~'-,~~•-~,=•··•'-""--""""'_ _ _ _ _ ,.,_.,,~... . ·, ·'/' 'i .. ·,. ·. IN THE COURT OF APPEAL OF TANZANIA AT OAR ES SALAAM .(CORAM: MSOFFE, J.A., LUANDA,J.A., ,And MASSATI, J.A.) · CIVIL APPEAL NO. 32 OF 2007 SBC TANZANIA LIMITED ....................................................APPELLANT . VERSUS THE COMMfSSIONER GENERAL OF TANZANIA REVENUE AUTHORITY ........................................... RESPONDENT (Appeal from the judgment and Decree of tile Tax Revenue Appeals Tribunal of Tanzania at Oar es Salaam) (Shanqwa, J.) dated the 6 th day of February, 2007 in Revenue Tax Appeal No. 19 of 2006 RULING OF THE COURT 3 & 9 July 2012 . MASSATI, J. A: The appellant was aggrieved by the decision of the Tax Revenue. Appeals Tribunal of Tanzania sitting at Dar es Salaam, th dated 6 February, 2007, and filed an appeal in this Courton the th 5 April, 2007. The respondent resists the appeal. On 22/3/2010 --- --- --,---. ---··-----·-·-·-----'•-•«••··--··--- --·-- he fHed a notice of preli1ninary objection, as to the con1petency of the appeal. The Preliminary Objection had two limbs; nan1ely: a) Non compliance with Rule 21 of the Tax Revenue Appeals Tribunal Rules, 2001 GN 56 of 2001. b) Non compliance with Rule 83(2) of the Tanzania Court of Appeal Rules, 1979. However, in the course of hearing of the said prelin1inary objection, the respondent abandoned the second limb of the objection. At the hearing of the appeal Dr. ·Wilbert Kapinga, learned counset appeared for the appellant, and Mr. Felix Haute learned counsel represented the respondent. Mr. Haule's submission on the first and remaining preliminary objection was that the judgment of the Tax Appeals Tribunal was 2 ' .., I . not certified by all the members of the Tribunal, ~ut by only the I Chairman. His view was that, this was contrary to Rule 21 of tlie . . 1 I Tax Revenue .Appea:Js Tribunal Rules, 2001, (GN $6 of 2001). As I the rule was couched in mandatory terms, its contravention was . I fatal, he argued. Mr. Haule cited to us the decisiqn of th\s Court I in AMI PORT OPERATIONS (T) LIMITED v THE COMMISSIONER I I FOR INCOME TAX, Civil Appeal No. 28 of 2005 (unreported) on I the point. Dr. Kapinga, ir1itially resisted the preliminary objection, but I on reflection, he later conceded to it, and prayed that the appeal be struck out. There is no dispute that the judgment of t~e Tax Revenue I Appeals Tribunal of 6/2/2007 that is on record, is signed by the I Chairman and two other members of the Tribu hal, but certified 1 i only by the Chairman. Rule 21 of the Tribunal Rujes, provides: I I .I - ···-- •••• ·----······ -◄·--···- ··-·-··-· -··· ·-- -··-·-····---·-·-· . . •· 1· . I . ··-· --·- - - . --·- .. -----· ·-·- ··---·. -· ... - --- .... ·-···-- -- .. --··•·-- .. -· -- ·- -· ···- ·-. - -· --·-- - --- --- --·- -- --------------- -- ·- ---- --- -- - -- --- -i- - - ----- ------------- -- ------- --- .. ·-· --· -- ··----·-- ---······ ..... ······--·· · - - - ~ - - · · · ...._._.: ____ ..__ · .. _. "After conclusion of the hearing of. the evidence and the submissions of the patties, the Tribunal shall, as soon as practicable ,nake a decision in the presence of the parties or their advocates, or representatives and shall cause a 9opy duly signed and certified by the e111bers of the Tribunal _which heard the appeal t:o be se,ved on each patty to the proceeding" (e,nphasis suppli~d) As this Court observed in AMI PORT OP£RATIONS (T) LIMITED case (supra) the law therefore requires all 111embers of the Tribunal, not only to sign, but also to certify the copy of the decision, and that the omission affected the validity of the copy of the judgment which appeared in the record of appeal. Mr. Haule is therefore on firm grounds; that the copy of the judgment contained in the record of appeal was faulty. As we he{d in the AMI PORT case, the defective copy of the judgment has the effect of infecting the record of appea,I, because Rule 4 - ....--•---·-- ··-· - .... ----··-.. ·-· ..• .,.. ··--· .. ·-··--·-.-' -~ .. •-· ·-·----···- .. --·· - -- - - - _::..=-. - ·- -- :..._·~-..::..:· -~~--------_:··..:··:._::- _..::-....: __ ··-=-:....:..-.. __ _:::~=--~:·.:·:..:.:.··_::.~~-..:.~~ ..-._--.~;·-·•·--··--··--.. ~-·------~---·--··r ___ .. -- ··- ... -~ .. ' -· .....:::~ ------·-··- ___ _,,._, ....--.-~ ---~--- 89(2) (iv) of the then Court of Appeal Rules., 1979 required that the record of appeal contain a: 'Judgn1ent or order" from which an appeal is sought. It is in1plicit that such a copy of · 1 judgment or order should be a val.id one. As the copy of the judgment in the present appeal is not valid, it follows that the record of appeal is also incurably defective. The appeal is therefore incompetent. In the result, we uphold the preliminary objection, and proceed to strike out the appeal with costs. DATED at DAR ES SALAAM this 4th day ofJuly, 2012. J.H. MSOFFE . ,., JUSTICE OF APPEAL ,: 5 I \ ' ' \ B.M. LUANDA JUSTICE OF APPEAL S.A MASSATI JUSTICE OF APPEAL I certify that his is a true copy of the original. (M.A. MALEWO) DEPUTY REGISTRAR COURT OF APPEAL . ' 6 ... .. --- ---------··· ·•······· - .... - - ···-·· .. --····-----··-"•" ............,., ________.,.,,., .................. ................................ .,...... . --·-· . --- . -- .. -- ---·-- ········-- ·- ···- - ---7---