20000915 TZHC Dar es Salaam2

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL CAUSE NO.3 OF 1997 IN THE MATTER OF AN APPLICATION BY THE REGISTERED TRUSTEE OF THE CATHOLIC DIOCESE OF MO SHI FOR LEAVE TO APP~ Y FOR THE ORDERS OF CERTIORARI AND MANDAMUS 'AND IN THE MATTER OF THE DECISION OF THE MINISTER FOR FINANCE UNDER / THE CUSTOMS TARIFF ACT 1976 AND THE SALES TAX ACT, 1976 BET\VEEN THE REGISTERED TRUSTEES OF THE CATHOLIC DIOCESE OF MOSHI.. ........................ APPLICANT AND THE HON. THE ATTORNEY GENERAL) ...... RESPONDENTS THE COMMISSIONER FOR CUSTOMS) RULING MSUMI,JK:, 'The applicants judgment debtors are requesting the court to review its decision issued on 28/1/98. Upholding the application for prerogative orders, the court in that decision quashed the decision oJthe Minister of Finance revoking tax ren1issions granted to the respondent and ordered hi111 to restore the said tax 2 rem1ss1ons. What the applicants are contending in this application is that the court decision in question was fraudulently obtained hence they are asking the court to review it in tenns of Order XLII, Sections 78 and 95 of the Civil Procedure Code. Together with the Men1orandun1 of Review, the chan1ber summons is supported by the affidavit of one PIU~ MAFURUNJA NGUMA who, at the n1aterial time, was the Acting Commissioner for Customs and Excise. The gist of the deponent's assertions is contained in paragraph 9 of his affidavit which says: That subsequent communication from the Registered Trustees of the Catholic Diocese of Moshi have established that the · Respondent/Decree holder never applied for remission and has not received the containers or proceeds of sale of the goods whose taxes were remitted by the Honourable Minister for Finance and has disassociated itself fron1 the road project. And has denied to have instructed any person to file a case in court; letters from the office of the Bishop of Diocese of Moshi are annexed hereto and collectively marked annexture B to form part for this affidavit. It is on these assertions that the applicants are alleging that the court decision in question was fraudulently obtained. In other words what the applicants are saying is that the court made the decision on the understanding and belief that,' 3 the app1ication for tax remission was 111ade by the respondent decree holder. With respect this is not correct. The affidavit of Reverend Father Mark Riwa in support of the application for prerogative orders clearly states that the application for tax remissions was made by Kilema Parish which is within the Diocese of Moshi. The deponent was, at the n1aterial time, Father incharge ofKile111a Parish. Indeed even the two Government Notices which communicated the remission stipulated that it was in respect of goods imported by Kilema Parish. At no time during the hearing of the application had the court been acting under the in1pression that the tax remission was applied by and granted to the Registered Trustees of the Catholic Diocese of Moshi. The court could not be misled by the fact the nan1e of the diocese had been used as the applicant because, an1ong other things, the affidavit of Reverend Father Mark Riwa states that Kilema Parish is part of the Catholic Diocese of Moshi. Actually the question why the naine of the diocese ( ': was used as the applicant in those proceedings is specifically addressed in paragraph 6 of the affidavit which says: That sometimes in May 1966, the second respondent enquired on whether Kilema Parish has legal existence which enquiry was duly replied on 5th June 1966 through a letter from the Tanzania Episcopal Conference a copy of which ... 4 is annexed and n1arked D. The said letter (arn1exture D) is addressed to the second applicant judgment debtor, who is the C0111missioner for Custon1s says: YAH: KUSAJILJWA PAROKJA YA KJLEMA JIMBO KA TOLIKJ LA MOSHI Kwa barua hii nathibitisha kuwa Parokia ya Kilema ni Parokia iliyo katilrn Jimbo la Moshi lililosajiliwa chini ya Baraza la Maaskofu Katoliki Tanzania. Parokia hii imeruhusiwa" , · kupokea makontena ya nguo kuukuu na bidhaa nyingine kwa utaratibu wa kusan1ehewa kodi ya ushuru ili kuj enga barabara ya Mandaka - Kilema. Mradi huu unasimamiwa na Mbunge wa Jimbo la Vunjo. Kusudi la barua hii ni kuiwezesha Kampuni ya Marinair Freight Ltd. S.L.P. 406 Dar es Salaam kukon1bolea bidhaa hizo zinazohusika na ujenzi wa hiyo barabara. This letter was written and signed by Father Method Kilaini as secretary general of Tanzania Episcopal Conference. Both paragraph 6 of the affidavit and the referred annexture were never challenged by the applicants judgn1ent debtors. . .,..... 5 : It is further contended that the proceeds realised frOJ?1 the sale of goods on which tax was remitted have not been directed to the road project in question. Again this contention has no substance. There is no evidence, either from members of Kilema Parish or Moshi District Council to substantiate it. The project is under the direct management of these two authorities hence they are in the better position to say whether or not the proceeds have been properly accounted for. As a whole the court is satisfied that there was no fraudulent misrepresentation in the proceedings which resulted to pronouncement· of the decision which is required to be reviewed. The application is therefore dismissed with costs. JAJI KIONGOZI 15/9/2000 For the applicants: 1st applicant: Chidou. 2nd applicant: Lugaiya For the respondent: Fauz.