RULING KOREAN METHODIST NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISC. CIVIL CAUSE NO. 21409 OF 2024 (CASE REFERENCE NO. 202408301000021409) THE REGISTERED TRUSTEES OF KOREAN METHODIST WELFARE MISSION IN TANZANIA...................... APPLICANT VERSUS TANZANIA REVENUE AUTHORITY (TRA)..............................RESPONDENT RULING 13/12/2024 & O3/03/2025 MANYANDA, J.: The Applicant, a charitable organization undertaking religious and social services in Tanzanian to its communities through a mission called Korean Methodist Welfare Mission in Tanzania, registered under the laws of Tanzania, is moving this Court for prerogative orders of certiorari and mandamus against the Respondent, the TRA. The application by way of a chamber summons is premised under the provisions of section 2(1) and (3) of the Judicature and Application of Laws Act, [Cap. 358 R.E. 2019]; Sections 17(1) and (2) and 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap. 310 R. E. 2019]; Rule 8(1)(a) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Page 1 of 25 Rules, 2014, GN No. 324 of 2014 and Section 95 of the Civil Procedure Code, [Cap. 33 R. E. 2022]. It is supported by an affidavit and statement of facts. In order to understand this matter, it is better to narrated its background from the affidavital pleadings, albeit in a nutshell. The Applicant once owned a motor vehicle, Toyota Surf with Registration No. T.799 AAG, which in June, 2022 is alleged to have mysteriously disappeared with its driver to an unknown place, along with its registration card. Having unsuccessful searched for it, the Applicant reported the incident to the 1st Respondent who advised the incident to be reported to Police. After a report was made on 27/06/2022, a loss report was availed to the 1st Respondent who through its officers advised the Applicant to publish it in a local newspaper; advice which was heeded to by publication of the loss report in Mwananchi Newspaper dated 13/01/2023. Initially, it looked as if the matter had come to an end as it was in the hands of police investigation. However, later on, without the motor vehicle been recovered, the Applicant was subsequently made aware that the officers of the 1st Respondent had drawn charges dated 02/11/2023 against her for failure to comply with tax laws, and for Page 2 of 25 disposing of the said motor vehicle without payment of VAT contrary to Section 82 of the Tax Administration Act, 2015, [Cap. 438 R.E, 2019], (the TAA) and unlawful disposal of goods earlier on imported duty free without payment of duties, as well as disposing of the said car without payments of taxes/duties contrary to Section 119 of East African Community Customs Management Act, 2004, (the EAC CMA). When an officer of the Applicant was invited to answer to the charges, was served with some written documents, without knowing their contents. Then, it was followed by case settlement orders compounding the two charges by the 1st Respondent whereby the Applicant was required to pay Tshs. 750,000/= for the first count and US Dollars 1,000 for the second count. The Applicant is bemused by the decision of the 1st Respondent compounding the offences and ordering her to make the said payments, believing that no proper procedure of the law was followed and was condemned unheard, among other grievances. It is from the above background that leave to apply for judicial review was granted and ultimately this matter filed. Page 3 of 25 The Applicant is asking for a writ of certiorari to; one, quash and set aside the charges against the Applicant concerning the failure to comply with tax law and the alleged unlawful disposal of motor vehicle Make Toyota Surf. Two, quash and set aside the orders for settlement and compounding of the offences and the orders for payment of Tshs. 750,000/= and US Dollar 1,000.00 respectively. The Applicant is also longing for grant an order mandamus to compel the 1st Respondent to deal with the dispute of the Applicant's motor vehicle Make Toyota Surf in accordance with the laws and procedures with costs. The Respondents opposed the application by filing a counter affidavit and a Statement in Reply. The grounds for the reliefs as displayed in the Statement are violation of principles of natural justice on allegations that the 1st Respondent acted without hearing the Applicant and was a judge of its own course. Others are bias, illegality and unjustified claims. Hearing of this matter was disposed by way of written submissions. The Applicant's submissions were drafted and filed by Ms. Catherine A. Wambura, learned Advocate of Machibya Professional Page 4 of 25 Attorneys. 1st Floor, Atman Inn Building, Plot No. 6 Block "F" Mpwapwa Road, P.O. Box 298, Dodoma. The Respondent's submissions were jointly drawn and filed by Ms. Hadija Senzia and Mr. Erasto Ntondokoso, learned State Attorneys, of the Directorate for Legal Services Department, Tanzania Revenue Authority, 2 Edward Sokoine Drive, 11105 Mchafukoge, Ilala CBD, P.O. Box 11491, Dar Es Salaam on one hand and Mr. Nicodemus Agweyo, learned State Attorney, of the Office of Solicitor General, P.O. Box 1902, Dodoma. The main issue in this matter is whether the Applicant has established good cause for this Court to use its discretion to grant the order of certiorari and mandamus. The prevailing position of the law on conditions under which the prerogative orders of certiorari are issuable are conspicuously listed in the famous case of Sanai Murumbe and Another vs. Muhere Chacha, [1990] TLR 54 in holding number ii which read as follows: - "(ii) the High Court is entitled to investigate the proceedings o f a lower court or tribunal or public authority on any o f the following grounds apparent on the record: - (a) taking into account matters which it ought Page 5 of 25 not to have taken into account; (b) not taking into account matters which it ought to have taken into account; (c) lack or excess o fjurisdiction; (d) conclusion arrived at is so unreasonable that no reasonable authority could ever come to it; (e) rules o f naturaljustice have been violated; (f) illegality o f procedure or decision;" (emphasis added) The gist of the complaint is based on breach of natural justice, which is among the conditions for issuance of orders of certiorari. The Applicant's counsel concedes in his submissions that under sections 92 of the Tax Administration Act, 2015 and Section 219 of the East African Community Customs Management Act, 2004, the 1st Respondent has power to compound offences. However, he points that his client's complaint is about failure to meet the procedure for compounding offences which amounts into breach of natural justice being failure to give adequate opportunity to the Applicant to be heard before condemnation to pay the imposed amounts. He is also complaining of biasness for the 1st Respondent to act as judge of his own course. The basis of the counsel complaint is about violation of what he calls conditions antecedent to compounding of offences that there must be a charge against the offender; the said charge must not be excluded by law; the offender must admit to the charge in writing. That, the Page b o f 25 offender must accept the terms of settlement in writing; the compounding order must be in writing and served to the offender together with the admission and the acceptance of the conditions; and the compounding order must state the offence, the laws contravened, the amount compounded and the date of making the payment. He was of the view also that the charge is defective in terms of section 135(a) of the Criminal Procedure Act, [Cap. 20 R. E. 2022], hereafter the CPA, pointing the said defects being non-signing by the maker, non-mentioning of the contravened section of the law in the statement of offence, lack of date of the commission of the offence, lack of name of the accused and use of abbreviations in references to the laws. He also pointed reversal listing counts as they start with count number 02 and then count number 01. The counsel relied on the Court of Appeal of Tanzania cases of Isumba Huka versus Republic, Criminal Appeal No. 113 of 2012, [2013] TZCA 345 (26 November 2013) and Abdallah Ally versus Republic, Criminal Appeal No. 253 of 2013, [2015] TZCA 55 (21 July 2015), where it was insisted that a charge which is violative of the provisions of section 135(a)(i) and (ii) of the CPA vitiates the proceedings and the resultant decision thereon. According to him the defects make the charge vague, confusing and extremely technical for the accused to understand the accusations levelled against him, hence denial of right to fair trial and adequate preparation for defence, which amounts to denial of the right to hearing. The State Attorneys for the Respondents submitted in rebuttal arguing that the accusations against the Applicant stems from disposal of the motor vehicle without payment of the relevant taxes, hence the impugned charge involved in this matter is not subject of section 135(a) of the CPA because it was drafted for use before a quasi-judicial body, it was not drafted for use before a magistrate. On the strength of the same argument, they distinguished the cases cited by the Applicant's counsel arguing that they do not apply in the matter at hand. I have visited the copy of the charge with two counts attached to paragraph 11 of the affidavits of Young Mi Cha and Immanuel Phillip Sollo as Annexure MPA-4 to both affidavits and found that it is a standard form in which the drafter simply fills in the blank spaces. It contains heading, charge drafting date, file number, name and address of the accused, count serial number, the statement of the offence, particulars of offence and the penalty. It has neither space for the court or tribunal's heading nor for the signature by the drafter. The impugned charge is headed "the United Republic of Tanzania, Tanzania Revenue Authority Customs Department, Charge Sheet". It contains the address of the accused reading "Korean, Methodist Welfare - Mission in Tanzania, Box 115 Dodoma." The charge also terms count one as count number two and vice versa whereas it reads thus: - COUNT NO. 2: STA TEMENT OF OFFENCEAND LA W "Unlawful disposal o f goods earlier on imported duty free without payment o f duty (a person knowingly disposes o f or knowingly acquires any such good)." PARTICULARS OF OFFENCE Being found with disposing off TOYOTA SURF with chesses No. KZN1309034716 (T799 AAG) without payments o f taxes/duty, contrary to section 119 EAC CMA, 2004. COUNT NO. 1: STA TEMENT OF OFFENCEAND LA W. Failure to comply with tax law PARTICULARS OF OFFENCE Being found with disposing off TOYOTA SURF with chesses No. KZN1309034716 (T799 AAG) without payment o f VAT contrary to section 82 o f TAA, 2005. Page 9 of 25 The Applicant referred this Court to the provisions of section 135(a)(i) and (ii) of the CPA and the cases of Abdallah Ally versus Republic (supra) and Isumba Huka versus Republic (supra). In the latter case the Court of Appeal of Tanzania stated inter alia that: - "Be that as it may, Section 135 o f the Criminal Procedure Act, [Cap. 20 R. E 2002] provides the mode in which offences are to be charged. As to what a charge sheet should contain, paragraph (a)(i) and (ii) states very clearly that a charge sheet should describe the offence and should make reference to the section o f the law creating the offence." On the other hand, the Respondents argue that those provisions of section 135(a)(i) and (ii) of the CPA are not applicable to the matter at hand because the case was not before a criminal court of law. In my view, the conducts of the 1st Respondent reveal that he was dealing with a criminal case subject of a criminal court, save that he was empowered to compound it in case the offender admits, else, it is a criminal case subject to trial in a criminal court. I say so because both section 92(1) of the TAA and section 219 of the EAC CMA, make it explicit that a decision of the Commissioner General to compound an offence stands on the same legal footing as a person convicted of the Page 10 of 25 offence by a criminal court. The relevant provisions under the TAA read as follows: - "92(1) Where a person commits an offence under a tax law, the Commissioner General may compound the offence and may order a person to pay the fine that would have been paid had such person been prosecuted and convicted for the offence or order forfeiture o f any goods related to the offence or both." (emphasis added) Also, the relevant provisions under the EAC CMA read as follows: 219(1) The Commissioner may, where satisfied that any person has committed an offence under this Act in respect o f which a fine is provided or in r any thing is liable to forfeiture, compound the offence and may order such person to pay a sum o f money, not exceeding the amount o f the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence, as the Commissioner may deem fit; and the Commissioner may order any thing liable to forfeiture in connection with the offence to be condemned." (emphasis added) The emphasized words " may order a person to pay the fine that would have been paid had such person been prosecuted and convicted for the offence" used under section 92 of the TAA and the words " may Page 11 of 25 order such person to pay a sum o f money, not exceeding the amount o f the fine to which the person would have been liable if he or she had been prosecuted and convicted for the offence"used under section 219 of the EAC CMA, in my view, both equate the decision of the Commissioner General of TRA to compound the concerned offences with a conviction of the same criminal offence by a criminal court. I am fortified by a decision by the Court of Appeal of Tanzania in the case of The Commissioner General (TRA) vs. Mohamed Al- Salim and Another, Civil Appeal No. 80 of 2018, [2019] TZCA (29 April 2019), a case which concerned a situation similar to the instant one, discussing section 219 of EAC CMA that the decision of the Commissioner General of TRA to compound criminal offence is criminal in nature. It stated at pages 11 to 12 of the judgement as follows: - "It is glaring that, under the cited provisions where the Commissioner is satisfied that any person has committed an offence punishable by a fine, if such person admits to have committed the offence the Commissioner may compound the offence and require such person to pay the fine. Therefore, the Commissioner's compounding o f the offence order originates from admitted criminal conduct or offence." Page 12 of 25 Now, as far as modes of charging criminal offences is concerned, my understanding of the law, is that charges whether under the Penal Code or under those other laws are supposed to be in accordance with the provisions of the CPA, save for the exceptions provided under those other laws if any. I say so because section 4(1) of the CPA makes it generally applicable to all offences, providing that offences are to be inquired into, tried and otherwise dealt with according the CPA provisions, save for offences under other laws where a different procedure is provided for the regulation of the manner or place of investigation into, trial or dealing in any other way with those offences. Even in those exceptions hereinabove, still the law does not take away the requirement for a charge to be adequately informative to enable the accused person understand the nature of the accusations for him or her prepare his or her defence. Therefore, the charge regardless of its format, must have all the basic information stated in simple language such as statement of the offence which comprise of stating the conduct prohibited by the law and the provision of the law prohibiting the said conduct. Also, in the particulars of offence, the charge must state the name of the accused, time and place of commission of the offence. It must also tell what or Page 13 of 25 how the alleged offence was committed. Short of these, the charge is rendered defective. I have read the provisions of the EAC CMA and the TAA and have not been able to find any peculiar mode for laying of charges for offences committed under sections 119 of the EAC CMA and 82 of the TAA that allows omission of some vital information in a charge. Hence, the drafters of the impugned charges were supposed to provide all the essential information in order to enable the offender know the nature of the accusations levelled against him or her and enable him or her prepare his or her defence. Moreover, the reproduced charges above though serially haphazardly arranged, reveal that they were addressed to the Applicant and mention the offences and the contravened provisions of the law. However, they do not reveal the name of the court or tribunal before which were laid. Also, do not tell the date and the place at which the offences were alleged to be committed. Worse enough they were not signed by the drafters. Therefore, it remains a true position in this matter that the charges preferred against the Applicant run short of providing vital Page 14 oT 25 information to the accused person in order for her to be in a position to equip with adequate defence. As to the effect regarding the anomalies in the charges, the Applicant's counsel relying on the cases he cited, proposes that the whole proceedings and decision of the 1st Respondent is void for want of observance to rules of natural justice, in that the defects denied the Applicant opportunity to present a sound defence, hence his client was denied opportunity to be heard. This proposition is opposed by the State Attorneys arguing that since the officer of the Applicant admitted the allegations and agreed to have the offences compounded, then no rules of natural justice were breached. I have pondered the parties' arguments and found the question to be answered here is whether or not the Applicant was prejudiced by the defective charges. Degree of prejudice has been a yardstick by courts in determining effects on criminal proceedings where it is found that the charges were tainted with defects. For example, in the case of Halfan Ndubashe vs. Republic, Criminal Appeal No. 493 of 2017, the Court of Appeal stated as follows: - Page 15 of 25 "It is also settled that in determining whether a charge which suffers ailments o f wrong, non or improper citation o f provisions o f the law under which the accused is charged is curable or not, the test is whether from the particulars o f the offence and the evidence, the accused is able to fully understand the nature and seriousness o f the offence he stands charged. " (emphasis added) It follows therefore that the defects in the charges in this matter can be curable if it is shown that the Applicant was not prejudiced by the whole procedure of compounding the offences by the 1st Respondent From the affidavital pleadings, it is not disputed that the Applicant was served with documents which have the effect of agreeing to compounding of the offences by the Applicant. In paragraphs 11 and 12 of the affidavits by Young Mi Cha and Immanuel Philip Sollo, it is averred that neither of the Applicant's officers did sign the documents consenting to have the offences compounded. Moreover, it is argued that they were not given time to consult after been served with the charges and the subsequent offence compounding documents. The counsel argues that the officers of the Applicant did not know the contents therein being vague and technical. Page 1b oT 25 The State Attorneys, on the other hand, argue that the Applicant's officers understood well the contents of the compounding documents as he requested to have the offences settled by way of compounding, a request which was accepted by the 1st Respondent's officer. Then the Applicant's officer admitted commission of the offences and freely agreed to have the same offences compounded. I have read documents MPA-5 attached to paragraphs 12 of the affidavits by Young Mi Cha and Immanuel Philip Sollo and found that the same are headed "Order for Settlement of Case Under the Provision of Section 92 of Tax Administration Act, 2015." They are orders for settling criminal cases which were filled and signed on 07/11/2023 by the 1st Respondent's officer who allegedly inquired the offences. I have also read annexure R-1 in paragraph 5 of the counter affidavit headed "Request for Settlement o f Case Under Section 92 o f the Tax Administration Act, 2015", signed on 02/11/2023 by the same officer who allegedly inquired the offences and an unnamed person allegedly representing the offender. In summary, these documents reveal that there was a request letter dated 02/11/2023, the same day the charges were drawn, to settle the criminal case signed by a person, whose name is not Page 17 of 25 indicated, purporting to represent the offender; it is counter signed in acknowledgement by an officer of the 1st Respondent. The said document attempt to show that the offender was agreeing to settle the cases. This is per Annexure R-5 in Paragraph 5 of the Counter Affidavit, a request which led to issuance of the impugned settlement orders in respect of both counts. The Applicant through the submissions by her counsel vehemently denies to have made that request nor involved in the process of settling the cases, but was only surprised by been served with the said documents. The reason given is that neither of the Applicant's officers signed the purported settlement request as there is no name of the person who signed the said request. I agree with the Applicant's counsel that there is no name of the person who signed the request letter purporting to represent the offender, but there is a mere signature of which ownership is in dispute. I agree also with Applicant's proposition that the purpose of the disputed signature could either be acknowledgement by an unknown person of receipt of the criminal cases settlement orders or acknowledgement of the making the settlement request. I say so because paragraph 12 of the affidavits by Young Mi Cha and Immanuel Philip Sollo regarding Page 18 of 25 what transpired about reception of the settlement orders do not tell if either of them did actually sign the request letter. Unfortunately, the State Attorneys did not see any need of asking for leave of this Court to cross examine him in order to unearth more evidence on this vital area of the controversy which remain vague. A question this Court has asked itself is whether in such circumstances it can be safely said that the Applicant's officers signed the case settling request letter for the case settlement, voluntary admitting commission of the offences and requested for settling of the cases as alleged by the State Attorneys. The answer to this question, in my firm view is in negative. I say so because there is no concrete evidence that there was such admission or consent to settle the case by compounding. The conditions antecedent to compounding of offences are as laid down under sections 92(2) and (3) of the TAA and 219(2) and (3) of the EAC CMA, that there must be a charge against the offender; the said charge must not be excluded by law, that is, known in law; the offender must explicitly admit to the charge in writing; the offender must accept the terms of settlement or compounding in writing; the settlement or compounding Page 19 of 25 order must be in writing and served to the offender together with the admission and the acceptance of the condition in writing; and the compounding order must state the offence, the laws contravened, the amount compounded and the date of making the payment. Importantly, names of the concerned persons must be written in the request and admission forms for compounding offences. In this matter all these conditions were not observed. Therefore, non observance of the conditions and procedure for compounding of the offences, coupled with charges tainted with defects to the extent of rendering the same vague and unclear, I am of the settled view that the Applicant was prejudiced by not only the defective charges levelled against them, but also the whole process and the resultant orders of case settlement as the same are violative of right to fair hearing. It was violative of the principle of natural justice as it denied adequate opportunity to right to hearing before condemnation by the 1st Respondent. In this jurisdiction, from 09/08/2001, when the Court of Appeal delivered its famous judgement on the principle of natural justice in the case of Mbeya-Rukwa Autoparts & Transport Ltd. vs Jestina George Mwakyoma (Civil Appeal No. 45 of 2000) [2001] TZCA 14 (9 Page 20 of 25 August 2001), it became settled that right to hearing is mandatory procedural requirement as it is not only fundamental right but also inherent right enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, violation of which renders a resultant decision void. The Court of Appeal held in that case, inter alia, as follows: - "(v) The right o f hearing is a fundamental constitutional right in Tanzania by virtue o f Article 13(6)(a) o f the constitution; (vi) It was a breach o f the rule o f hearing, thatjustice must not only be done but must manifestly be seen to be done, when the trial judge considered it as needless to give Ms Kagera an opportunity to be heard; (vii) The judge's decision to revoke the rights o f Ms Kagera and the appellant, without giving them opportunity to be heard, was not only a violation o f the Rules o f natural justice, but also a contravention o f the Constitution, hence void and o f no effect." Therefore, based on findings of this Court explained above and guided by the authority in Sanai Murumbe and Another vs. Muhere Chacha (supra), that the Applicant was not afforded with adequate right of hearing, the impugned compounding orders by the 1st Respondent styled as "case settlement orders" are void ab initio for being violative of rules of natural justice. It is the holding of this Court that the same case settlement orders are void and a nullity for being violative of rules of natural justice. The main issue in this matter whether the Applicant has established good cause for this Honourable Court to use its discretion to grant the order of certiorari and mandamus is answered in affirmative. With this finding, I need not to dig up the other complaints which boil to the same issue of lack of right to hearing. For instance, there is a complaint of bias, illegalities and unjustified claims by the 1st Respondent in issuance of the impugned settlement orders. I have stated above that the 1st Respondent's orders for case settlement fall-short of affording the Applicant with right to defend as they don't bear any evidence proving that the Applicant admitted commission of the offences. They were unilaterally drafted ordering her to pay the claimed amount. This was an obvious breach of rules of natural justice. While I agree with the State Attorneys that the 1st Respondent act of compounding offences does not amount to being a judge of his own course, the process is subject to some procedures laid down by the law as explained above, none observance of which renders the compounding decision void and a nullity. Page 22 of 25 Moreover, the State Attorneys submitted that the 1st Respondent conducted audit on exemptions granted on motor vehicles to charitable organization and discovered loss of the motor vehicle in issue and that the loss report was issued after the audit and the Applicant had never informed the 1st Respondent about the loss of the motor vehicle. Hence, the Applicant had committed the offences prior to reporting the loss to police. However, there is no evidence on record showing the alleged audit and its report which could substantiate the Respondents' contentions. To the contrary, there is a loss report dated 27/06/2022 per Annexure MPA- 2 which was published in Mwananchi Newspaper dated 13/01/2023 per Annexure MPA-3 both showing the dates of the loss well before drafting of the charges on 02/11/2023. There is no evidence to support the assertions by the State Attorneys. It is on these reasons that I find the Applicant has established the conditions for issuance of the writs of certiorari and mandamus as prayed for. Issues of locus standi and existence of sufficient interest raised by the State Attorneys were wiped out during leave stage, can not be reopened here. Page 23 of 25 Consequently, I do hereby make the following orders: - 1. I grant the order of certiorari, quash and set aside the charges against the Applicant concerning failure to comply with tax law and the alleged unlawful disposal of motor vehicle Make Toyota Surf with Registration No. T 799 AAG and Chesses No. KZN1309034716 issued by the 1st Respondent; 2. I do hereby grant the order of certiorari, quash and set aside the order for settlement and compounding of the offence under section 92 of the Tax Administration Act, 2015 and the order for payment of Tshs. 750,000/= both issued by the 1st Respondent; 3. I do hereby grant the order of certiorari, quash and set aside the order for settlement and compounding of the offence under section 219 of the East African Community Customs Management Act, 2004 and the order for payment of US Dollar 1,000 issued by the 1st Respondent; 4. I do hereby grant the order of mandamus, to compel the 1st Respondent herein to deal with the dispute of the Applicants’ motor vehicle Make Toyota Surf with Registration No. T 799 AAG and Chesses No. KZN 1309034716 according to the laws and procedures; and Page 24 of 25 5. Cost of this application be borne by the 1st Respondent. Order accordingly Dated at Dodoma this 3rd day of March, 2025 F. K. MANYANDA JUDGE Delivered at Dodoma this 3rd day of March, 2025 by virtual presence of Mr. Elias Machibwa, Advocate for the Applicant and Mr. Nicodemus Agweyo, State Attorney for the Respondents. The application is granted with costs. Right of appeal dully explained to the parties. F. K. MANYANDA JUDGE Page 25 of 25