19990414 TZHC Dar es Salaam

IN TrLl 1UGH COUR'I' OF 'l'il.NZANIA (DAR ES SALA.AM DISTRICT· REGISTRY) . !l!-WlB it~$ SAT,AA~ ,. . 'MOHAMMED BADAWI A,.~D ANOTHER ••••••••••••••••••••• PLAINTIFJ!''S Versus ·TANZANIA REVENUE AUTHORITY DEFENDANT

RULING CHIP.ETA, J.: This is an application by the applicants, namelyi Mohamed Badawi and Masuo Ali Masuo, for an order that th~ respondent, 1anzania Revenue Authority, do release to the applicants a boat belonging to the applicants which has been seized by the re.spond,mt pending the determination of the main suit. The facts are that at the material time the applicants owned a boat called AL-BURAQ which used to carry cargo to and from Zanzibar and Mombasa. On or.about 31st December, 1998, the respondent seized the boat at tha port 1 of Zanzibar, and on 31st December, 1998, the respondent issued a Notice of Seizure of the boat which was duly served on the Master of the said boat. It was alleged in that Notice of Seizure that - ''it has been made use of in the importation of goods liable to forfeiture contrary to section 156 of the C.M.A ,.. !- '·, " 2 By that Notice of Seizure, the applicants .1A1ere •al.so informed that if they claimed or intended to claim that the boat seized was not liable · fo forfeiture, they should give a notice in writing within one month. The applicants, however, failed to give a notice within the stipulated • •period, but they gave notice on 5th March, 1999, through a letter written by their advocates by which they. demanded the release of the .boat. Mean-while the respondent wrote the applicants to inform them that they were liable to pay Shs. 815 9

748,214/= as unpaid truces which ailegedly resulted from. understatement of value of goods carried by the boat. / In their letter of 5th March, 1999 9 the a!)plicants denied any such liability. When the applicants demand yielded no results, they filed a suit on 17th March, 1999 claiming release of the boat and payment of special damages. On the same.day, they filed the instant application which is supported by an affidavit'of one Masuo Ali Masuo; the second applicant/plaintiff. During the h~aring of this application,Mr. M. Ngalo, learned counsel for the applicants, submitted that the Notice of· Seizure was illegalo On the other hand, ~u-. Teemba, learned counsel for the respondent, submitted that the Notice of Seizure was lawfully issued, and that the appJ.ication was incompetent by reason of the fact that the applicants did not file a notice within the statutory period; and further, that the vessel had already been condemned and was liable to sale. It is beyond dispute that the applicants did not file their notice within the statutory period. For that reason, under tha provisions of section 159 of the East African Customs and Transfer Tax Management Act, applied to 'l'anzania by· Act No.19 of 1977, the vessel can properly 1 'be deemed to be conderr.ned•i. In my view, however, that is not the same thing as saying that the owner of a vessel deemed to be condemned or any person

with an interest therein is barred from instituting proceedings in a court of law after expiry of the period of notice to challe·nge such seizure unless such person is otherwise• barred by the law of limitation. Indeed, section 161 of the Act enables the respondent to institute proceedings for the condemno.tion of the thing seized, or to require the person concerned to ins~itute proceedings for the recovery of the thingo I have seen no provision in the Act preventing@. interested p~from suing the respondent if such person is dissatisfied with a decision of the respondent. ~ / \ ( .. - , • ' 3 For the foregoing reasons, it is, in my view, legally untenable to say that this application, or the main suit for that matter, is ,.. I ~ incompetent, simply because the applicants did not give notice within one "'mo~th. In sum, I am of the view that the failure by the applicants to file notice within one month does not preclude them from challenging the seizure by way of proceedings.in a court of law where no ~roceedings have been instituted under section 161 of the Act unless otherwise barred by the law of limitation. The application, therefore~ is properly before the court and so also ls the main suit. The larger question, then, is whether it would be prudent, fair, and just to grant the application. The application was not objected to upon any other ground other than the one discussed

and resolved herein above. In this matter, therefore, I think that I should be guided by the balance of convinience of the partieso I tend to agree that the vessel at the moment is exposed to waste and the applicants are possibly suffering.financial loss. I have also boz:nein mind the large sum of money allegedly owi~g to the respondent from the applicantso r On a careful consideration of the matter, I am of the view that it would not be in the best interdsts of the partfos to expose the vessel to waste and possible vandalism. For these reasons, I grant this application to this extent, that is, that the vessel shall be released to the a_pplicants on condition that it shall be lia0le to be produced before the court as and when required by the court, and that during the pendency of the main suit the master of the vessei· or any other person shall not, in the course of ma.iaging the vessel, commit any offence relating to eustO!llS and transfer tax management. / It is so ruled. ·/ !/ .. ; B. D. CHIPETA

JUDGE Ruling cJeJ; ,rP,~.i<>d in Chambers this 16th day of April, 1999 in the presence of the advocates of the. partieso B. D. CHIPlTA JU:JGE ]~4/1999 (- \. [