FINAL RULING LEAVE KOREAN COMMUNITY SERVICE VS CG TRA 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 CERTIORARI AND MANDAMUSAGAINST 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 AUTHORITY.......... .1st r e s p o n d e n t THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA 2nd r e s p o n d e n t RULING 30th July & 15th August, 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 Provisions) Act, [Cap 310 R.E 2019], the applicant filed in this Court his application for Leave and other orders as the follows: 1. Leave to lodge an application for certiorarito 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 certiorarito 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 certiorarito 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, Toyota Surf with Registration No. T.799 AAG, which is alleged to have mysteriously disappeared with its driver to an 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 her to report the incident to Police where she obtained a loss report, and thereafter was advised to advertise the same in a newspaper. Having complied, and thinking that the matter had ended, the applicant became aware that the said officer(s) of the 1st respondent had drawn charge against her for failure to comply with tax laws, and for disposing of the said motor vehicle without payment 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 of the said car without payments of taxes/duties contrary to Section 219 of East African Community Customs Management Act, 2004 as revised in 2017 (Hereinafter "the EAC Customs Act"). An officer of the 3 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, the 1st respondent compounded the two counts in the charge sheet whereby the applicant was obliged to pay Tshs. 750,000/= for the first count and US Dollar 1,000 for the second count. The applicant is unhappy with the decision of the 1st respondent for not following proper procedure of the law, and for condemning her unheard, among other grievances. It is under the above background this application for leave to file for judicial review has been filed. On their side, the respondents filed a counter affidavit sworn by Boaz Jonas Isanzu opposing this application. At the hearing, Mr. Elias Machibya, learned Advocate appeared for the applicant while Mr. Nicodemus Agweyo, learned State Attorney represented the respondents. Having adopted the affidavits of Shin Il Kim and Immanuel Philip Sollo as well as the statement in support of the application to be part of his submission, Mr. Machibya mentioned five criteria which guide Courts in exercising their discretion to grant leave, and focused on convincing this Court that none of the said criteria was unsatisfied. 4 Firstly, he submitted that the application has been filed in the nick of time, within the statutory period of six months. He clarified that the order of the 1st respondent which is being impugned was made on 7th November, 2023 and the application was filed on 15th February, 2024. Secondly, he submitted that the applicant has sufficient interest in this matter by being the owner of the motor vehicle in dispute as well as being the subject of the fines imposed by the 1st respondent's impugned order. He referred the Court to the filed affidavits acknowledging the applicant as the owner of the motor vehicle in question. Thirdly, he submitted that there is an arguable or prima facie case established by the applicant. Referring to the affidavits, he clarified that the applicant's complaint is on illegality of the charge served upon her and failure to accord the applicant full and fair right of hearing. Fourthly, he cited the provisions of section 219(3) (e) of the EAC Customs Management Act, 2004 to argue that there is no alternative remedy to be exhausted as the order for compounding offence is final and unappealable, hence a resort to judicial review. Lastly, he submitted that the impugned order was made by the 1st respondent as a public body discharging public duties as per pleadings. 5 Based on the above, it was Mr. Machibya's submission that all the conditions for granting leave were met by his client. To concretize his contention, he cited the case of Halima James Mdee & 19 Others vs The registered Trustees of Chama cha Demokrasia na Maendeleo (CHADEMA) & 2 Others, Misc. Civil Cause No. 27 of 2022, High Court Main Registry DSM and Latan'gamwaki Ndwati & 7 Others vs Attorney General, Misc. Civil Application No. 178 of 2022, High Court at Arusha. In reply, Mr. Agweyo, learned State Attorney, sought to adopt the counter affidavit of Boaz Chales Isanzu and proceeded to join hands with Mr. Machibya that the application is properly and timely filed in Court. However, he found the reasons submitted by his counterpart insufficient to support the application. He gave the following reasons for his position. Firstly, that the charges served upon the applicant have been said to be unlawful without mentioning the law that has been contravened, and nowhere in the affidavits supporting the application it has been averred that the applicant did not understand the basis of the charge. Secondly, citing the decision of this Court in Nandhra Engineering and Construction Company Limited vs The Minister of 6 Constitution and Legal Affairs and Another, Misc. Civil Cause No 8968 of 2024, TZHC 5894 (24 June 2024), Mr. Agweyo argued that in addition to the five conditions for granting of leave submitted by Mr. Machibya, there is the sixth condition which is to ensure that the applicant makes an application for leave in good faith. He saw no good faith in it. Elaborating on the above, the learned State Attorney find no such good faith in the instant matter because while the affidavit supporting the application aver that the applicant's driver disappeared with the car, no proof has been furnished. He argues in this connection that the Police report (Annexure MP2 to the affidavit) states that it is not an evidence, hence it does not prove that the driver disappeared with the car. Thirdly, that the applicant has not been able to establish an arguable case by not citing the law contravened by the charges served upon the applicant. Referring to a form attached to the counter affidavit as annexure R1 made under section 92(2) (a) of the Tax Administration Act [Cap 438 RE 2019], the learned Attorney argued that the applicant freely admitted the charged offences. He added that the 1st respondent would not have compounded the offences without the applicant admitting in writing that she committed the offences. 7 Fourthly, that there were other measures which the applicant could have pursued before landing in Court, such as to search for the lost car and to resolve the matter with Tanzania Revenue Authority amicably. His contention here is that the applicant had not exhausted local remedies. As for case of Latan'gamwaki Ndwati (supra) the learned State Attorney found it irrelevant to the matter before Court. As for the case of Halima Mdee (supra) the learned State Attorney conceded that it mentions the six criteria for grating of leave. Citing the English decision in Re - Hirji Transport Services [1961] All ER 88, the State Attorney contended that all the six conditions must be met by the applicant for leave to be granted. Since, according to him, the applicant has failed to meet three of the six conditions, the application be dismissed with costs. In his rejoinder Mr. Machibya reiterated his submission in chief, and reacted to some of the contentions raised by his counterpart, as follows: As for the application not being filed in good faith, he argued that so long as his counterpart conceded that the applicant has interest in the matter, the question of bad faith is unfounded in the counter affidavit of Boaz Isanzu, thus he associated it with the learned State Attorney himself. 8 The learned Counsel invited the court look into the undisputed circumstances that lead to the signing of the impugned forms. As for arguable case not being established, Mr. Machibya found the argument by his counterpart misconceived. Citing the case of Nandhra Engineering and Construction Company (supra), where the decision of the Court of Appeal in Emma Bayo's case was referred to, he argued that at leave stage this Court is not supposed to go to the details of the case such as sections of the law contravened by the charge sheet. According to him, it was enough at this stage to attach the defective showing no provisions of the law cited for both counts. The learned Counsel supported the case of Nandhra, cited by his counterpart and submitted his view that the applicant has met all the six conditions for granting of leave stated therein. On exhaustion of local remedies, the learned Counsel found the argument by his counterpart misconceived for a reason that after issuance of a compounding order, there is no room for the applicant to sit with TRA, as in law, such an order can be enforced as a decree of the court. As for the argument that what TRA did was in accordance with the law as per section 92(2) (a) of Tax Administration Act, Mr. Machibya's 9 reaction is that the argument is premature and that such issues should be kept for discussion during judicial review, if the leave is granted. Finally, he reiterated his prayer that the application be granted with costs. The above rival submissions give raise to one main issue, which is; whether the applicant has met the legal threshold to be granted leave to file an application for judicial review. The basic three criteria to determine whether an application for leave has passed the test of acceptance is to be found in the decision of the Court of Appeal in the case of Emma Bayo vs The Minister for Labour and Youth Development (supra), where it was held: "It is at the stage o f leave where the High Court satisfies itself that the applicant for leave has made out any arguable case tojustify the filing of the main application. At the stage o f leave the High Court is also required to consider whether the applicant is within the six months limitation period within which to seek a judicial review o f the decision o f a tribunal subordinate to the High Court. At the leave stage is where the applicant shows that he or she has sufficient interest to be allowed to bring the main application. These are the preliminary matters 10 which the High Court sitting to determine the appellant's application for leave should have considered while exercising its judicial discretion to either grant or not to grant leave to the applicant/appellant herein." [Emphasis added] As case law evolves, there are three more criteria (making a total of six) which this Court has been considering in determining leave applications. The said criteria have been well-stated in Nandhra Engineering and Construction Company Limited vs The Minister of Constitution and Legal Affairs and Another (supra) by my Learned Brother Hon. Manyanda, J who, having extensively scanned the available case law, managed to line up the following six criteria: "1. There must be prima facie or arguable or case; 2. The applicant has sufficient interest in the matter; 3. The matter must have been brought within time limit o f six months. 4. There must be a decision over the matter made by a public body; 5 There must be exhaustion ofremedies; 6. That the Application must be made in good faith ". I intend to look no further than the above yardstick to determine this application. 11 To begin with, there is no dispute that the application has been filed timeously within six-month period prescribed under rule 6 of GN No. 324 of 2014. The order being complained about was made on 7th November, 2023 while the application was filed in this Court on 15th February, 2024. Secondly, there is no dispute that the applicant has sufficient interest in the matter. The applicant being the owner of the Motor vehicle which is cause and the subject of this dispute and who is required to pay the compounded fines is obviously interested in this matter. Thirdly, there is also no dispute over the fact that the order being impugned was made by a public body or a public officer and in discharge of a public duty of tax collection. The dispute arises from the actions of the officers of the Tanzania Revenue Authority which culminated to the impugned order of the 1st respondent. Having perused the record and upon considering the submissions made before me, I hold the same position on the above criteria. The learned Counsel have locked horns on the remaining three criteria, namely; establishment of a prima facie or arguable case; exhaustion of available remedies and whether the application was made in good faith. I shall consider one criterion after another to determine whether the application has passed the test. 12 As to whether the applicant has established a prima facie case, the affidavits supporting the application were referred to by Mr. Machibya to show that the applicant's complaint is on illegality of the charge served upon the applicant and the right to be heard allegedly infringed by the officers of the Tanzania Revenue Authority. One specific area of illegality pointed out is non-citation of the provisions of law under which the charge sheets were drawn. The question for determination during judicial review may be whether non-citation of the provisions of law on the charge sheet made the charge illegal, and whether by being so drawn it impacted anyhow the rights of the applicant. Mr. Agweyo held the view that no arguable case has been made out because the applicant did not state any provisions of the law which were contravened by the charge sheet. I would think that stating the provisions of the law infringed is not material at this stage, as correctly argued by Mr. Machibya. In Emma Bayo (supra) the extent of scrutiny to be done by this Court is limited to seeing to it that an arguable case has been established. And, as I stated earlier there is a prima facie case built on the question whether non-citation of law and vagueness of the charges made the charges unlawful and whether it impacted negatively on the applicant's full and fair right of hearing. 13 There has also been an allegation that the trustees of the applicant were made to sign some forms without being made to understand what the forms were all about. Such allegations may need to be inquired into to find out the legality of the tax and fines the applicant has been ordered to pay. That said, I think it is safe to hold that a prima facie case has been established by the applicant. As to whether the applicant has exhausted available remedies, Mr. Agweyo's view is negative on the ground that the applicant could still have searched for the lost motor vehicle or knock on the doors of Tanzania Revenue Authority for an amicable settlement. Mr. Machibya did not buy that argument for a reason that the compounding order of the 1st respondent is, under section 219(3) (e) of the EAC Customs Management Act, 2004, final and unappealable, hence a resort to judicial review remedies. I agree with him. Section 219(3) (e) of the EAC Customs Act, clearly provides as follows; "The order shall be final and shall not be subject to appeal and may be enforced in the same manner as a decree or order o f the High Court". [Emphasis added] 14 The finality of the said order was also confirmed in 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) where it was held that the decision of the 1st respondent was criminal in nature and it was final. While the law makes the compounding order final and unappealable, the Court of Appeal in the above-cited case made it clear that despite the said order being unappealable, the same can be challenged by way of Judicial Review, which is exactly what the applicant has done. As regards the argument that the applicant could search for motor vehicle, I would not take it to be an alternative remedy in law. In my humble view, the alternative remedy must be established under the law, as a matter of right and should not be imaginary or one which makes it difficult for the complainant to achieve his or her claimed right. It is a little uncanny to suggest that the applicant should have gone out looking for the motor vehicle having done so previously without success, as averred in the affidavits, before she reported its loss to Police. Besides, since the suggested alternative remedies are not backed by the pleadings, the same are tantamount to statements from the bar and are therefore disregarded. 15 Finally, the learned State Attorney deems the applicant's application to have been filed mala fide. His argument is that, the applicant has not been able furnish proof of the disappearance of the motor vehicle with its driver, as Police loss report is not the proof. I have considered this argument, and my humble position is threefold: Firstly, I think, a presumption of innocence befits the applicant unless the contrary is proved through a due process. Secondly, no one can be called upon to prove the negative. The applicant cannot be made to prove that the motor vehicle disappeared. Thirdly, the argument that the application was filed mala fide raised by the learned State Attorney is not supported by the affidavit of Mr. Boaz Jonas Isanzu. The same is obviously a statement from the bar. In line with the decision of the Court of Appeal in Said Sultan Ngalema vs Isack Boaz Niwanishi & Others, (Civil Application No. 362/17 of 2021) [2022] TZCA 684 (4 November 2022), this argument is also disregarded. Therefore, while affording the applicant her deserved right to a presumption of innocence, subject to the finding of the Court during judicial review, I hold that this application was filed in bona fide or in good faith. 16 In the end, therefore, I am satisfied that the applicant has met the legal threshold for granting of leave to file for judicial review. Accordingly, the application is granted and ipso facto, I grant leave to the applicant to apply for orders of certiorari and mandamus as prayed in the chamber summons. The Applicant shall file her application for judicial review within 14 days from the date hereof. Costs to abide the outcome of judicial review. Dated at Dodoma this 15th day of August, 2024. ABDI S. KAGOMBA JUDGE 17