20160916 TZHC Mwanza

. ;, b' . ··.;, 1 .... IN THE HIGH COURT OF TANZANIA (. \ . ' AT MWANZA CIVIL APPEAL NO. 54/ 2014 . . (Originating from the decision of District Court of Musoma at Musoma vide Civil Ca_se No. 36 of 2010) · TANZANIA REVENUE AUTHORITY ........... APPIEllANT vs BRYSON IBWIRIE MBONDE .....................RESPONDIENT JUDGMENT OF THE COURT 1/6/2016 & 16/09/2016 GWAE, J, In the District Court of Musoma at Musoma (trial court), the respondent, Bryson Swire Mbonde, a :businessma·n running a shuttle bus filed a suit against the appellant, Tanzania Revenue Authority (TRA) claiming that the appellant did not timely register his motor vehicle (Toyata Hiace with former registration numbers TZK 9565) into new single identification number for motor vehicles as required under Regulation 18 ( 1) of the Road Traffic (Motor Vehicles Registration) Regulations, G. N. 177 OF 2002, came into operation in 1st July 2002. · ~ 1 ·The respondent further ·claimed that he positively responded to the < requirement by paying necessary fees for re- registr_ation that is Tshs. . . .. 52,000/= and wa·s to collect new numbers_ for hi? motor vehicle but he was not supplied with the same after expiry of 14 days contrary to the appellant's promise. The respondent's basis for his claims was also was to the effect that the appellant did not negligently give him new. registration numbers for more than three years despite his letter of complaints or reminder letters. · Basing on the alleged negligence and unreasonable care, respondent lodged the following claims against the appellant, decree and judgment for Tshs. 53,487,850/=, a decree and judgment for general damages to be assessed by the trial court, interest at 35% from the date of _filling the suit to the date of judgment, courts interest at 9% from the d~te of judgment till full payment, costs of the case and any other reliefs just and fit to grant. After hearing of both parties, the trial court delivered its decision on thel st July 2014 where the respondent was granted the following reliefs:-general damages of fifteen million (Tshs. 15, ooo;ooo/= ), court interest at rate· o f / ~ 2 7 % from the date of judgment to the date of full payment ~nd costs of ( the case. The appellant was aggrieved by the decision of trial court; he filed notice of appeal and subsequently filed his memorandum of appeal comprised of seven grounds of appeal, notably: 1. That the tri~I court erred in law in entertaining and trying the suit whilst . it had no original jurisdiction. . 2. That the trial court erred in law and fact in holding that the appellant delayed to register the respondent's Motor vehicle with numbers while the law did not set up the time limit for issuing new registration Certificates and numbers 3. Assuming delay to register the register the respondent's Motor vehicle with numbers. The trial court erred both in law and fact in not holding that the said delayed .was caused by the respondent himself for supply wrong chassis numbers of the motor vehicle to the appellant. 4. That the trial court erred both in law and fact in not holding .that the respondent suffered damage due to the delay by t h e ~ 3 appellant to issue new registration numbers for the ( respondent's motor vehicle. . . . 5. Assuming that the respon9ent suffered general damages, the · trial court erred both in law and fact in not holding that the said damages were caused by the respondent himself. . 6. That the trial cour~ erred -both in law and fact in awarding general damages of Shillings fifteen million Tshs. 15, 000, 000/ = to the respondent. 7. That the trial court erred both in law and fact in awarding interests and costs to the respondent. Before this court, ·the appellant was represented by one Maswanyia, the learned advocate who also made a legal representation before the trial court whilst Mr. Alhaji Majogoro, the learne~ advocate appeared for the respondent. Mr. Maswanyia vigorously submitted that the trial court had no jurisdiction to entertain the matter pursuant to section 7 (1) of Civil Procedure Code (CPC) ready together with section 6 of the Tanzania Revenue Authority Act (TRAA) together with section·, 7. (1) of the Tax Revenue Appeal Board Act· (TRABA), Mr. Maswanyia argued that although under section 7 (1) of CPC_ ~ 4 all courts are vested with jurisdiction but according to TRAA bars (: institution of a case to an ordinary court whenever a person is aggrieved . . . by an act . or omission . of the Commissioner General in. hi_s discharge .of his duties and that under se¢tiori 7 (1) of the Tax Revenue Appeals Act.the Tax Revenue Appeal Body is given a sole mandate to hear and determine cases of this nature. To substantiate or emphasi_ze his submission that any dispute .arising from exercise of powers of the Commissioners General of TRA that dispute must be referred to Tax Reve:nue Board, Mr. Maswanyia urged this court to make a reference to a decision of Commercial Division of the High Court Mohsin Sonji v Commissioner for Customs and Commissioner for Tax lnvestig~tion (2004) TLR 66 and TRA V. New Musoma Textile ltd, Civil Appeal No. 93 of 2009 (unreported), a decision of the Court of Appeal of Tanzania. As to the 2 nd and 3rd ground of appeal, the respondent's counsel submitted that the alleged delay of registration of the respondent's motor vehicle did not, if were, so cause any damage as there was no order ·of prohibition of using motor vehicles with old registration numbers to the respondent and that there was no time limit for registration of new motor vehicles numbers. Mr. Maswanyia added that if the respondent parked his motor 5 following the alleged delay, it was on his own will or peril and not _( ass_ociated with appellant's order _or directive whatsoever. . . . . The appellant's representative further submitted that if the appellant ~aused the delay fo~- the re-registration yet the· respondent had· contributed by forwarding a wrong chassis numbers._ th In regard the 4 and ~ th ground of appeal, Mr. Maswanyia argued that _the trial court wrongly awarded general damages to the respondent as the . . ··respondent parked his motor vehicle on his own accord while the appellant did not commit any wrongful act, stressing his argument, the learned counsel for the appellant then cited a case of Said Kibwana and General Tyre fast_Africa ltd v Rose Jumbe (1993) TLR 186. Relying on thejudicial precedent in the case of said (supra) supporting the appellant's ground 6 and 7 of appeal Mr. Maswanyia reiterated that the respondent should not be awarded any interest and costs as there was no basis justifying the trial court to award the general damages, according to him, as the appellant had not committed any wrongful act against the respondent. Opposing the submission by the appellant's counsel, the . respondent's . advocate stated that the issue before the trial court was governed by the ~ffl©s 6 ' l' . · Road Traffic Act and that under first schedule of TRAA, Road Traffic Act ( and its r_egulatici~s GN. 17 OF 2011 are n_ot the law? enlisted in the . .. schedule adding .that the matter at hand is not r~lated to collection of revenue or income, thus cited section ·7 (1) of TRAA is not applicable in the matter in question. Answering the 2 nd and 3 rd ground of appeal, Mr. Alhaji argued that the purported delay of 3 years or more -is unreasonable since the there were communication between the parties and the respondent had reminded the appellant but in vain and that the respondent parked his motor vehicle due to disturbance made to him by police. Mr. Alhaji went on attacking_the appellant's ground no. 4 and 5 of appeal in that the respondent did not provide wrong chassis numbers to the appellant and if that was true yet the appellant did not state how that wrong chassis numbers contributed to the delay. Regarding the contentious grant of general damages, Mr. Alhaji submitted that the award of general damages and Costs to the respondent was ju?tified by the wrongful and unreasonable delay by the appellant to issue new numbers of re-registration, supporting his submission; Mr. Alhaji requested this court to refer to a dedsion of Court of Appeal ·in Tanzania 7 · Brevveries ltd \f' Charles Msuku and Yahaya Mtete, Civil Appeal 18 of r 2000 (unreported). '· . In hls rejoinder, Mr. Ma~wanyia stated that re-registration of _motor_ vehicle was governed by Government Notice. 2002 where the Road Traffic Act is . incorporated and the Com•missioner General is in play adding that· registration of motor vehicles amounts to taxation which inc;:ludes - registration of plate numbers by applying laws together with regulations, particularly, GN 177/2001 Mr. Maswanyia also stated that issue of unreasonableness does not arise since the respondent was not restrained or prohibited from using his motor vehicle by either the appellant or police except_ that the respondent was told that he could be notified when the plate numbers were due for collection, He lastly argued that the general damages is not a gift rather an entitlement when a wrongful act has been committed by a defendant against a plaintiff. In determining the ground I of the appellant's appeal, it is abundantly clear that this point has been raised in this appeal stage however I am aware that the issue of jurisdiction can be raised at any time even in the . . appeal as was discussed by the Court of Appeal in the case of Tanzania j~ 8 Revenue Authority vs. KOTRA Co·mpany limited, Civil Appeal, No. 12 · ( _ . of 2009 (unrepo~ted) approved by the case cit~d by the appellant's counsel of New M~soma Textile ltd (supra) and a decision in Tanzania - China Friendship Textile ltd v Our Lady Usamb~ra Sisters (2006) TLR 70 at page 71). It is also abundantly clear as submitted by the appellant's counsel that ordinary courts have exclusive jurisdiction to try all suits of civil nature like . . the present one except where it is expressly provided or barred by other pieces of legislation such as laws governing land matters or labour disputes and related labour matters (see section 7 (1) of CPC, section 67 of the Land Act and section 94 of Employment and Labour Relation Act, Act No. 6 of 2004). It is also clear as argued by the appellant's advocate that under section 7 of the Tax Revenue Board Act, Cap 408, R. E, 2006. Section 7 of _ the Tax Revenue Appeals Board, Cap 408, R. E, 2002, ordinary courts are ousted from hearing matt~rs emanating from revenue laws, section 7 of the Act is hereby reproduced for easy of reference; "7. The Board shall, subject to Section 12 have sole original jurisdiction in all proceedings of a civil nature in respect of disputes . arising from revenue laws admin.istered by the Tanzania Revenue }Jm"!hf-~i Authority". --~ 9 .. · The above·quoted provision of the law, to·my simple understanding, is ( _ unambiguously dear and to the effect that any dispute origi_nating from. any revenue piec~ of legislation should be filed in the Tax_ Revenue Board. and be-adjudicated by the sarne board, this position of the law was correctly demonstrated by this court at Dar-es salaam in Mohsin Somji v Commissioner for Customs and Excise Commissioner·Tax Investngatio111s (supra), the High Court of Tanzania (Nsekela J as he then was) held: "By section 3 and 7 of the Tax Revenue Appeals Act, 2000 read together with section 7(1) of the Civil Procedure Code, .1966, ordinary civil courts are barred from entertaining tax d•sputes arising from · revenue laws administered by the Tanzania Revenue Authority, the Revenue Appeal Board have exdusive authority to handle such cases TRAA, (CAP 399, R. E, 2006)". Looki.ng at the plaintiff's plaint now respondent,-the plaint is vividly ali about inspection of his motor vehicle and processes of re-registration of · motor vehicles, the respondent paid to the appellant income ta_x and essentially the respondent was alleging that the appellant was gross and unreasonable negligent in discharging his duties as a result of such lack of diligence and care of his duties he sustained damages (see para. 7, 9, 1-0 and 11 and 7 of the plaint). 10 The respondent's action is undoubtedly based on torts of negligence and or .( · Iac.k of care which amounts to a civil c;:ase alleged to have aroused out of . . . . . re.,.registration motor vehicles a~d issuance of new numbers. How. TRA.;s Commissioner General came into play? It is simply because · · registration of motor vehicles is also about revenue collection based on tax/revenue collectable by TRA vide the Motor Vehicle (Tax on Registration and transfers) Act, Cap. 124 pursuant to item 12 of the 1st schedule of the TRBA, lnTanzania Reve·nue Authority v. New Musoma Textile.ltd (supra), "Whatever arises out of the exercises of those powers, in our views, is a dispute arising from that particular revenue law, and therefore justifiable in the Tax Appeals Board ... since the law is· one administered by the appellant and on which the Tax Appeals Board had the sole original jurisdiction to determine disputes arising therefrom and since the respondent has not shown to the Court that he could not obtain an approprlate remedy from the Board, the High Court had no jurisdiction to hear and determine the suit" Looking at GN.11 OF 2002 which came into operation on the 1st day July . . 2002 and by virtue of the Road Traffic Act and its Regulation No. 177 of ~ 11 2001, the TRA is duly appointed a registrar of motor vehicles. Since the (..__ laws applic~ble in the re,-registration are administered by TRA, acting as- the Registrar of the ·n1otor vehicles, I think the-'appellant's grou·nd no. 1 is · • meritorious; Consequ_ently the first ground is not therefore lame, the trial court is found to have lacked jurisdiction to hear and determined the matter at hand unless the respondent could be able to state that -he could not get any remedy from the relevant Board (Tax Appeal Board) which is not the .case here. Having found that the trial court, had no jurisdiction, there is therefore no need to be curtailed by other grounds of appeal as anything done out of lack of jurisdiction is a nullity. In the event, the appellants' appeal is allowed with costs; the trial court · proceedings and decision therefore are quashed and set aside respectively. It is so ordered. ~A-.- 1 M.R. ~ · Judge 16/09/2016 Right of appeal fully explained. /Rffl~a~-·- M.R.G~ . Judge 16/09/2016 12 C Court. Judgment·rende'red in chambers in the presence of Mr. Maswanyia, the leaned advocate for the appellant and that of the respondent J.3