RULING PO KOREAN COMMUNITY SERVICE VS CG TRA FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 3970 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF C E R T IO R A R I AND M A N D A M U S AGAINST THE 1st RESPONDENT AND IN THE MATTER OF SECTION 2(3) OF THE JUDICATURE AND APPLICATION OF LAWS ACT, [CAP 358 R.E 2019] AND SECTION 17 AND 18(1) OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, [CAP 310 R.E 2019] AN D IN THE MATTER OF CHALLENGING THE DECISION OF THE COMMISSIONER GENERAL OF THE TANZANIA REVENUE AUTHORITY CHARGING THE APPLICANT AGAINST THE LAW AND COMPOUNDING THE SAID OFFENCES AGAINST THE LAW AND PROCEDURE BETWEEN THE REGISTERED TRUSTEES OF THE KOREAN METHODIST WELFARE MISSION IN TANZANIA................................................. APPLICANT AND THE COMMISSIONER GENERAL TANZANIA REVENUE AU TH O RITY.......... ..1st r e s p o n d e n t THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA 2ND RESPONDENT RULING 11th June & 12th July, 2024 KAGOMBA, J. By way of a chamber summons made under section 2(3) of the Judicature and Application of Laws Act, [Cap 358 R.E 2002]; Section 17 and 18(1) of the Law Reform (Fatal Accidents and Miscellaneous 1 Provision) Act, [Cap 310 R.E 2019], the applicant has applied to this Court for granting of Leave and other attendant Orders as the follow: 1. Leave to lodge an application for certiorari to 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 with Registration No. T. 799 AAG and Chesses No. KZN1309034716. 2. Leave to lodge an application for certiorari to 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/=. 3. Leave to lodge an application for certiorari to 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. 4. Leave to file an application for mandamus to compel the 1st respondent herein to deal with the dispute of the applicant's motor vehicle Make Toyota Surf with Registration No. T. 799 AAG and Chesses No. KZN1309034716 according to the laws. 5. Cost of this application be borne by the 1st respondent. 2 6. Any other relief(s) as the Court may deem it fit to grant. The application is supported by two affidavits sworn by Shin Il Kim and Immanuel Philip Sollo, both being trustees of the applicant. The background of this matter is to the effect that the applicant used to own a motor vehicle Make Toyota Surf with Registration No. T.799 AAG, which is alleged to have mysteriously disappeared with its driver to unknown place, along with its registration card. Having unsuccessfully searched for it, the applicant reported the incident to the 1st respondent, whose officer(s) advised the applicant to report the incident at Police where she obtained a loss report, and thereafter was advised to advertise the same in a local newspaper. Having complied, and thinking that the matter had ended, the applicant became aware that the said officer of the 1st respondent had drawn charge sheet against the applicant's mission, for failure to comply with tax law, and for disposing of the said Motor vehicle without payments of VAT contrary to Section 82 of the Tax Administration Act, 2015, and unlawful disposal of goods earlier on imported duty free without payment of duties, as well as disposing off the said car without payments of taxes/duties contrary to section 119 of East African Community Customs Management Act, 2004 as revised in 2017 (Hereinafter "the EAC Customs 3 Act"). An officer of the applicant was invited to answer to the counts in the charge sheet, and he was made to sign some forms, allegedly unknowingly. To the applicant's surprise, 1st respondent compounded the two counts in the charge sheet whereby the applicants' mission was obliged to pay Tshs. 750,000/= for the first count and US Dollar 1,000 for the second count. The applicant impugns the decision of the 1st respondent for not following proper procedure of the law, and for condemning the applicant unheard, among other grievances. Suffice to say here that the application for leave is pending before this Court for hearing. However, the respondents have filed a notice of preliminary objection opposing the said application on the following point of law: "1. That the su it is incom petent fo r contravening section 7 o f the Tax Revenue Appeals A ct [Cap 408 R .E 2019] and section 219 (3) (e) o f the East African Community Customs Managem ent Revised 2017" On 11th June, 2024, when this matter came up for hearing, Mr. Omary Ngatanda, learned State Attorney representing the respondent prayed for disposal of the preliminary objection by way of written submissions. There being no opposition from Mr. Elias Machibya, learned 4 Advocate appearing for the applicant, the Court acceded to the prayer and both sides duly complied with the Court's scheduling order which ensued. Ms. Hadija Senzia and Mr. Erasto Ntondokoso, learned State Attorneys from the 1st respondent teamed up with Mr. Nicodemus Agweyo, also a learned State Attorney from the Office of the Solicitor General to prepare the submission in chief in support of the preliminary objection, while Mr. Elias Machibya, Counsel for the applicant prepared the reply submission for his client. There was no rejoinder filed by 27th June, 2024 which was the deadline for filing a rejoinder, if there was any. In support of the preliminary objection, it was submitted that this Court does not have requisite jurisdiction to entertain this application owing to the civil nature of the application and the same being emanating from the action of the 1st respondent connected to administration of revenue law which empowers her to compound offence when administering the Customs laws. It was further submitted that the 1st respondent has powers to compound the offence once satisfied that any person had committed an offence under the EAC Customs Act in respect of which a fine is provided or in respect of which anything is liable to forfeiture. That under the provision of section 219(1) of the EAC Customs Act, the 1st respondent 5 may also order such person to pay a sum of money not exceeding the amount of the fine which the person would have been liable to pay if he or she had been prosecuted and convicted for the offence. Based on the above statutory mandate and powers, the learned State Attorneys contend, in the main, that the 1st respondent rightly exercised his powers under the law, upon being requested by the officers of the applicant to compound the offence. The second point of contention as per submission of the learned State Attorneys is that the 1st respondent enjoys the same status as this Court because her order to compound offences under the law is enforceable as the decree of this Court pursuant to the provision of section 219(3) (e) of the EAC Customs Act, which provides, thus; "The order sh all be fin a l and sh all not be subject to appeal and m ay be enforced in the same m anner as a decree or order o f the High Court". So, in summarizing their submission above, the learned State Attorneys contend that this Court lacks jurisdiction on account of finality of the Order of the 1st respondent to compound offences and for being tantamount to a judge of the same Court challenging his or her peer. 6 Citing the provision of section 7 of the Tax Revenue Appeals Act [Cap 408 R.E 2019], the learned State Attorneys further contended that the jurisdiction over this matter is vested to the Tax Revenue Appeals Board ("TRAB"). The cited provision states: "The Board sh all have sole original jurisdiction in a ll proceedings o f a civ il nature in respect o f dispute arising from the revenue law s adm inistered by the Tanzania Revenue Authority". To further convince this Court regarding their position, the learned State Attorneys made reference to the decision of the Court of Appeal in Bryceson Bwire Mbonde vs. Tanzania Revenue Authority, (Civil Appeal No. 88 of 2018) [2021] TZCA280 (5 June 2021) at page 13 contending that the Court of Appeal interpreted section 7 of the Tax Revenue Appeals Act (supra) by confirming that it is TRAB that is vested with jurisdiction in all proceedings of a civil nature in respect of dispute arising from the revenue laws administered by the 1st respondent. The case of Commissioner General (TRA) vs. New Musoma Textile Limited (Civil Appeal No. 93 of 2009) [2020] TZCA284 (9 June 2020) was also cited to support the same position. Having so submitted the learned State Attorneys prayed for the application to be dismissed with Costs. 7 The reply submission by Mr. Machibya was both fierce and remarkably candid. The learned Counsel considered the preliminary objection gravely misconceived and a " deliberate attem pt o f the Respondent to m islead this Honourable Court'. He prayed for a deserved "painful dismissal" of the said preliminary objection. He demonstrated his assertions. On the Court's lacking requisite jurisdiction over this matter, the learned Counsel submitted that the position of the law is settled and clear that, the power of the 1st respondent to compound offences under the law is not civil, but is an action which emanates from criminal offence. He reckoned that even his counterparts have used the word, " to com pound offencd' which according to him implies that there was an offence. In furtherance of his contention, the learned Counsel cited the case of the Commissioner General (TRA) vs. Mohamed Al-Salim and Another, Civil Appeal No. 80 of 2018 reported in TANZLII as [2019] TZCA (29 April 2019), in which the Court of Appeal held, in ter alia, that the decision of the Commissioner General of TRA was criminal in nature and it was final. Aided by detailed deliberations of the Court of Appeal in the above cited case, the learned Applicant's Counsel is of a firm position that the 8 Order of the 1st respondent in compounding offence originates from admitted criminal conduct or offence, hence it is not civil but criminal in nature. As to the Order of the 1st respondent being final and unchallengeable in this Court, Mr. Machibya refereed to the same case of Commissioner General (TRA) vs. Mohamed Al-Salim and Another (supra) where the Court of Appeal held that, the words 'the order shall be final and shall not be subject to appeal' contained in section 219(3) (e) of the EAC Customs Act mean that, the Commissioner's compounding the offence order is not subject to appeal but it can be challenged by way of Judicial Review at the High Court under the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act, 2014. Mr. Machibya didn't mince his words when he assured this Court that the Respondent (sic) is quite conversant with the above position of the law. And, it is with such knowledge the learned Counsel stated that the respondent intended to deliberately mislead this Court. Based on the above submission, the learned Counsel was of the view that all the cases cited by the respondents were distinguishable as they were concerned with civil jurisdiction, while the instant application emanated from criminal offences. He was emphatic that the preliminary 9 objection is grossly misconceived, and devoid of merits, and should therefore be dismissed with costs. Having considered the above rival submission, it is apparent that the issue before the Court is whether the preliminary objection is meritorious. To determine this issue, I have read provision of section 7 of Tax Revenue Appeals Act [Cap 408 R.E 2019] as well as section 219 (3) (e) of the EAC Customs Act. It is these two provisions of the law which were deemed to have been contravened by the applicant's application, leading to the preliminary objection. It is fortunate that both provisions of the law above have been subjected to judicial scrutiny and their interpretations have correctly been availed by Mr. Machibya from the decisions of the Court of Appeal in the cases cited above. Under the circumstances, I shall do no more than to accede to the position stated by the superior Court of the land, that: One; that while it is true that TRAB enjoys sole original jurisdiction in all proceedings of a civil nature in respect of dispute arising from the revenue laws administered by the 1st respondent, the decision of the 1st respondent of compounding offences is not of civil nature but criminal as per decision of the Court of Appeal in Commissioner General (TRA) vs. Mohamed Al-Salim and Another (supra). 10 Two, while it is true as submitted by the learned State Attorneys that the Court of Appeal in the case of Bryceson Bwire Mbonde vs. Tanzania Revenue Authority (supra) and Commissioner General (TRA) vs. New Musoma Textile Limited (supra) confirmed that TRAB enjoys sole original jurisdiction in all proceedings of a civil nature in respect of dispute arising from the revenue laws administered by the 1st respondent, the learned State Attorneys submitted half-truth with regard to the decision of the Court of Appeal in the latter case of New Musoma Textile Limited. They should have read it to the end to realize that this Court is not barred from exercising its jurisdiction in judicial review of the actions and decisions of the 1st respondent and others authorities. Three; while it is true that the provision of Section 219(3) (e) of the EAC Customs Act, makes the order of the 1st respondent to compound offences to be final, unappealable and enforceable in the same manner as a decree or order of this Court, nothing in this provision removes the jurisdiction of this Court in judicial review of the actions and decisions of the 1st respondent, in any fit case. It is common understanding these type of applications for prerogative orders is what avail this Court with opportunity to investigate the legality of actions and decisions of lower tribunals or authorities so as to keep them within their proper limits of ii power. As such, actions and decisions of public authorities and inferior tribunals, including the 1st respondent, are not spared of the jurisdiction of this Court in judicial review. Having said what I have said above, I entirely concur with the submission of Mr. Machibya in all key aspects of this preliminary objection. He has articulated the position of the law fairly well and helped the Court considerably. Accordingly, I find no merit in the preliminary objection as I answer the issue for determination in the negative. Consequently, this preliminary objection is dismissed with costs. Hearing of the leave application to proceed on the date to be scheduled by the Court. Dated at Dodoma this 12th day of July, 2024. ABDI S. KAGOMBA JUDGE 12