20161011 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KIMARO, l,A., MMlLLA, J.A And LILA, J,A) CIVIL APPLICATION NO. 128 OF 2011 TANGANYIKA INVESTMENT OIL AND TRANSPORT Co. LTD {IN RECEIVERSHIP) ...... ............ ... APPLICANT VERSUS 1. COMMISSIONER GENERAL (TRA) 2. KAMESHWAR MISHRA AS RECEIVER & l _ ........ RESPONDENTS MANAGER OF TANGANYIKA INVESTMENT! OIL & TRANSPORT CO. LTD ~ {Application for revision from the decision of the High Court of Tanzania at Dar es Salaam) (Twaib, J.) dated the 29th day of August, 2014 in Tax Application No. 1 of 2011 ············~····· ORDER OF THE COURT MMILLA, J.A.: At today's hearing of this application, Mr. Martin Matunda, learned advocate represented the applicant, Tanganyika Investme.nt Oil & Transport Co. Ltd, while Ms Joyce Sojo, learned advocate represented the respondent, the Commissioner General Tanzania Revenue Authority. 1 Before we proceeded with the hearing on merit, the Court wanted to satisfy itself on whether or not the record is complete, focus being on the inclusion or otherwise, of the ruling of the Tribunal that granted the order for extension of time in which to appeal, which is subject of the revision being sought, as well as the extracted order. On his part, Mr. Matunda admitted that those two documents are missing from the record but was forced to file the application without including those two documents because he applied for them but he was not granted. He therefore requested for adjournment to afford him chance to make a follow up. On her part, Ms Sojo contended that failure to include the decision of the Tribunal that granted the order for extension of time and the drawn order thereof, is a fatal omission which makes the application incompetent liable to be struck out. She pressed the Court to strike out the application. On our part, we hold firm that the applicant ought to have included in the Court Record the ruling of the Tribunal which granted the order for extension of time in which to appeal, which is the subject of the intended revision as well as the drawn order as envisaged by section 4 (3) of the 2 Appellate Jurisdiction Act, 1979 Cap. 141 of the Revised Edition 2002. We also hold that failure to include them in the Court Record is a fatal omission which makes the application incompetent. Since an incompetent application cannot be adjourned we are constrained to, and we hereby strike out the application. We make no order as to costs. DATED at DAR ES SALAAM this 11th day of October, 2016. N. P. KIMARO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. Y REGISTRAR COUR.l OF APPEAL 3