20171228 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 86 OF 2017 IN THE MATTER OF AN APPICATION FOR LEAVE TO AAPLLY FOR THE PREROGATIVE ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF THE TAX ADMINISTRATION ACT, 2015 AND IN THE MATTER OF AN APPLICATION TO CHALLENGE THE DECISION OF THE REGIONAL MANAGER, DOMESTIC REVENUE DEPARTMENT-ILALA TAX REGION, TO CHARGE OVER APPLICANTS' PROPERTIES FOR A DEBT OWED BY ANOTHER TAXPAYER ONE FARM EQUIP (T) LTD BETWEEN TAN RICE GRAINS AND SUPPLIES LIMITED ....................... lST APPLICANT QUALITY GROUP LIMITED ................................................ 2ND APPLICANT QUALITY CENTRE LIMITED ................................................. 3RD APPLICAN VERSUS REGIONAL MANAGER, DOMESTIC REVENUE DEPARTMENT - ILALA TAX REGION ............................... lST RESPONDENT THE ATTORNEY GENERAL ............................................. 2ND RESPONDENT RULING i . MKASIMONGWA, J. This is an Application by TAN RICE GRAINS AND SUPPLIES LIMITED, QUALITY GROUP LIMITD and QUALITY CENTRE LIMITED, against the REGIONAL MANAGER, DOMESTIC REVENUE DEPARTMENT - ILALA TAX REGION and THE ATTORNEY GENERAL seeking for the following: - 1. Leave to file an Application for Certiorari to challenge the decision of the 1 st Respondent to ultra-viresly and unlawfully charge over the Applicants' 1 assets for a debt owed by another tax payer, namely Farm Equip (T) Limited. 2. Leave to file an application for Prohibition against the 1 st Respondent restraining him and the establishment from recklessly, ultra-viresly and unlawfully dealing with the applicants' assets for a debt owed by another tax payer, namely Farm Equip (T) Limited. 3. Costs be borne by the Respondents. 4. Any other order or orders that the Court may deem just and equitable to grant. The Application is by way of a Chamber Summons filed under Section 18 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. _ 310 R.E 2002] and Rule 5 (1) and (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 and it is supported by the Affidavit sworn by ANJAN BANDOPADHYAY and the Applicants' Statement. In response to the Application the Respondents sought to object it and they have file Counter Affidavits sworn by ABDUL MAPEMBE and ASANTE HOSEA the Regional Manager and State Attorney working with the 1 st and 2°d Respondents, respectively. Along with the Counter Affidavit, the 1 st Respondent filed a Notice of Preliminary Objection in which it is alleged that, in terms of the Tax Revenue Appeals Act [Cap. 408 R.E 2002] the Court has no jurisdiction to entertain this matter. This ruling is in respect of the Preliminary Objection. On the date the Preliminary Objection came up for hearing there appeared before me Mr. Juma Salim Mbeleko and Mr. Jeremia Mtobesya, learned advocates respectively representing the 1 st Respondent and the Applicants. In his submissions Mr. Mbeleko stated that this Court has no powers to hear and determine this matter. He submitted that in terms of Section 7 of the Tax Revenue Appeal Act [Cap. 408 R.E 2002], powers to hear and determine disputes arising from the Administration of Tax Laws set out 2 under the 1st Schedule to the Tanzania Revenue Authority Act [Cap. 399 R.E 2002] are vested in the Appeals Revenue Board.· The Section gives sole original jurisdiction to the Tax Appeals Board to determine matters of a civil nature between any person and the Tanzania Revenue Authority (TRA). It is clear from the Affidavit filed in support of the Chamber Summons that this application emanates from the dispute that arose from the administration of the laws set out under the 1 st Schedule of the TRA Act. Such disputes have their own special forum for dissolution. As such the courts of law have no powers to admit and determine them. To count that position, Mr. Mbeleko cited decisions of the Court of Appeal of Tanzania in the case of TRA vs. New Musoma Textile Ltd, Civil Appeal No. - 93 of 2009 (Unreported), -TRA vs. Tango Transport Company Ltd, Civil Appeal No. 84 of 2009 (Unreported) and that of the High Court of Tanzania in the case of Moris Onyango vs. Senior Investigation Officer Customs Department Mbeya ( 1980) TLR 150. Mr. Mbeleko submitted further that the Tax Appeals Act, 2008 provides for remedy for a person aggrieved by the decision made by the 1 st Respondent and that is an appeal to the Board. The decision of the Board is appealable to the Tax Appeals Board whose decision is again, in terms of Section 25 (2) of the Tax Appeal Act, 2008, appealable to the Court of Appeal of Tanzania. Going by the words in Section 7 of the Tax Revenue Appeal Act the jurisdiction of this Court to determine matters of this nature is automatically excluded. Based on the submissions and authorities cited Mr. Mbeleko prays the \ court that it finds to have no jurisdiction to entertain and determine this matter. On his part Mr. Mtobesya submitted to the effect that the objection raised by the 1 st Respondent is based on the provisions of Section 7 of the Tax Revenue Appeals Act which, it is said, provides a sole jurisdiction to the Tax Appeals Board to determine matters of this nature. Mr. Mtobesya also stated that it has been argued that the Schedule to the Act lists Acts that are 3 subjected to Sections 5 and 7 of the Act. He submitted that the Tax Administration Act 2015 is not among the laws listed under the Schedule. That aside, Mr. Mtobesya submitted that the 1 st Respondent has misconceived the matter at hand. The Section talks of original jurisdiction. Where the High Court is to exercise its supervisory powers over the Administrative Bodies, it has inherent powers to deal with such matters. The learned counsel referred the Court to the decision in the case of the Attorney General Vs. Amani Walid Kibauru (1996) TLR 156 to support his argument. Being a Public Authority the 1st Respondent does not have immunity from the supervisory powers of the High Court when it comes to the illegality of the acts or decisions of the Public ---------Author-ity-. -Mr. Mtobesya added -that -the-inherent powers -of the-court cannot be ousted by any law and he got support of this submission in the decision in the case of Re Application Naginds H. Desia (1954) TLR (R) 196 by Cox CJ. He submitted that where the High Court exercises its supervisory powers against the decision of the Public Authorities, that jurisdiction has been jealously kept by it. The principle enunciated in Desia's case was taken on board by the Court in the decision in the case of Juma Yusufu Vs The Minister for Home Affairs (1990) TLR 80 where the court stressed that Judicial Review is involved to view the legality and not merits of the case. This application at hand intended to question the legality of the acts of the 1 st Respondent purporting to act under the Act on behalf of the Commissioner for the TRA without powers. Going by Sections 5 and 61 (1) of the Tax Administration Act, the 1 st Respondent acted ultra-vires. The Applicants also challenge the 1 st \ ' Respondent's act of charging in respect of the items owned by another person. The Court was referred to the decisions in the case of D'Souza Vs. Tanga Town Council (1961) E.A 377 and M.A. Ndolanga and others Vs. National Sports Council (1996) TLR 325. As to the cases cited by his learned friend Mr. Mtobesya submitted that they were all dealing with the merits of the case and not illegalities. Mr. Mtobesya prayed the Court that the preliminary objection be dismissed. 4 In a short rejoinder Mr. Mbeleko submitted that the Tax Administration Act 2015 has been listed in the Schedule to the Tanzania Revenue Authority Act by virtue of the Amendment of the Law. He added that the orders sought by the applicant are discretionary therefore, the alternative remedies should be pursued and that the Tax Appeals Board has a sole Jurisdiction. As such the Court is deceased with powers. He reiterated the prayer to have this matter be dismissed with costs. In considering the matter I find it is evident that the applicants are aggrieved by the decision of the Regional Manager, Domestic Revenue Department - Ilala Tax Region and that they intend to challenge it by seeking from the Court orders of Certiorari and Prohibition. So that they make an application for the orders they came to the Court with this application seeking for leave. In order leave to apply for prerogative orders be issued the Court must be satisfied that the applicant shall have a prima facie case if the leave is granted. In this matter, the Applicants shows that they will allege that the 1 st Respondent had acted ultra-vires and that he has unlawfully charged over the applicant's assets for debt owed by another tax payer that is Farm Equip (T) Ltd. From the facts of the case it is my opinion that the claim in the matter is a result of the exercise of powers by the Commissioner under the Tax Laws and that principally it is justiciable in the Tax Appeals Board. This view had the Court also in the case of the TRA VS. New Musoma Textiles Ltd, Civil Appeal No. 93 of 2009. (CAT) (Unreported) where it was held that: - "Whatever claim arises out of the exercise of those powers, in or view, is a dispute arising from that particular revenue law and therefore justiciable in the Tax Appeals Board" Speaking of the Board, the Court of Appeal of Tanzania stated further that:- "We think, the law is clear and counsel agree that the Tax Revenue Appeals Board set up under Section 4 of the Tax Revenue Appeals Act, has sole original Jurisdiction in all proceedings of a Civil nature 5 in respect of disputes arising from revenue laws administered by the Tanzania Revenue Authority. It is also undoubtedly the law in the face of Section 7 (1) of the Procedure Code that:- "The courts shall subject to the provisions herein contained have jurisdiction to try all suits of civil nature excepting suits which their cognizance is either expressly or impliedly barred" Our supreme Court that is the Court of Appeal of Tanzania also had word to say in the case of TRA Vs. Tango Transport Company Ltd, Civil Appeal No 84 of 2009 (Unreported) which was filed against a judgment and decree of this Court at Arusha-in Civil Case No. 38 of 2000 in which the plaintiff sued for general damages, restoration on the value of its properties, interest and costs arising out of the sale at a public auction of the vehicles prompted by a warrant of distress for the 8,219,538/= that was issued by the Commissioner of Income Tax under Section 109 (1) of the Income Tax Act, No. 33 of 1973. The Court stated as follows:- "We fully agree with Mr. Bundala that the dispute instituted in court by respondents' original plaint on 22/8/2000, which was subsequently amended was first and fore most to have been justiciable by the Tax Appeals Board or Zonal Tax Appeals Board or the Tax Appeals Tribunal respectively, under Sections 89 (1) (a}, 89B and 93 (1) (a) of Part XV Objections, Appeals, and Relief for Mistake of the Income Tax Act. Those forums were complete in that they had own statutory rules of procedure ... these constituted specific forums for the adjudication of any tax dispute or liability. This legal avenue had to be exhausted first by the respondent ... " In the matter hand, the Applicant does not resort to instituting a civil suit in Court. He intends to move the Court to invoke its supervisory powers and issue the writs of Certiorari and Prohibition. Mr. Mbeleko is of the view 6 that since the dispute involves or arises from the Tax Revenue laws, the complainant cannot approach the Court either by way of a suit or by application for prerogative orders, unless he has first exhausted the legal avenues available. Mr. Mtobesya, on his part shows that there is exception to that a general rule. He cited the case of Re Application Naginds H. Desia (1954) 2 TLR (R) 196 by Cox, CJ and submitted that Courts have not been barred from granting Certiorari if it is a matter of jurisdiction. In Desia's case the Court was of the following view: - "May statutes have taken away Certiorari in respect of matters of which those statutes have dealt with. But that never debarred the court from granting certiorari if it was a matter of jurisdiction. If an inferior court has exceeded the jurisdiction certiorari would lie to quash its order because it had no jurisdiction to make it. The taking away Certiorari by statutes no doubt prevented the Superior Court from inquiring into the merits of the determination but it did not prevent the Superior Court from inquiring into the question as to whether the inferior court had jurisdiction to make an order" As said earlier, the applicant's main complaint is that the 1 st Respondent had made a decision to ultra-viresly and unlawfully charge over the Applicants assets for debts owed by another tax payer namely Farm (T) Ltd. My understanding to the complaint grasps that the 1st Respondent does not have any genuine claim of tax against the Applicants but he has such claims against the Farm (T) Ltd a Company which is separate and distinct from them and that although the 1st Respondent has no claims of Tax against the Applicant's he has created a charge over their properties for a debt of Farm (T) Ltd who is again another tax payer. This story in my view does not lead the Court to find this to be a matter of jurisdiction. The matter goes to the merits of the case, from which fact the decision, if any, of the 1st Respondent cannot be quashed be issuance of an order of Certiorari. It requires discussion of the same in the legal forums set by the law to deal with matters of Taxes. 7 In that premises, the Preliminary Objection as raised by the 1st Respondent is sustained. This Court having been deceased with powers to hear and determine the matter, the application cannot stand and it is therefore struck out with costs. 8