vodacom tanzania public ltd co vs the commissioner general tra and another 2020 tzhc 4593 10 december 2020

IN THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISC CIVIL CAUSE NO. 33 OF 2020 BETWEEN VODACOM TANZANIA PUBLIC LIMITED COMPANY.......... APPLICANT AND THE COMMISSIONER GENERAL (TRA)...................... 1st RESPONDENT THE HONOURABLE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA................ 2nd RESPONDENT RULING Date of last order: 07/ 12/2020 Date of ruling: 10/ 12/2020 MLYAMBINA, 3. I. Introduction By way of Chamber summons, the Applicant sought for main two orders: One, the court be pleased to grant leave to the Applicant to lodge in this court an Application for the orders of Certiorari and Mandamus. Two, the Court be pleased to grant an interim order restraining the first Respondent from an illegal attempt to collect the disputed tax liability through the Agency Notice issued on 17th July, 2020 pending the hearing of the main application for the orders of Certiorari and Mandamus. The Application was made under Section 17 (2) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 (R.E. 2002), Section 2 (1) and (3) o f the Judicature and App'jcation Laws Act, Cap 358 (R.E. 2002); Rules 5 (1) (2) and (3), 7 (1) and (5) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N, 324 o f $ h September, 2014. The Application was supported with the Statement of the Applicant made under Rule 5(2)(a)(b) and (c) o f the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N. No. 324 o f $ h September 2014) and an Affidavit of Hadija Kinyaka, Advocate for the Applicant in support of the Application for leave to apply for the orders of Certiorari and Mandamus made under Rule 5(2) (d) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N. No. 324 o f $ h September, 2014. II. Preliminary Objections Apart from filing Counter Affidavit and statement in reply, the 1st Respondent raised two plea in limine litis to the effect that: 1. The Application is incompetent and misconceived for being filed contrary to Section 7 o f the Tax Revenue Appeals Act, Cap 408 (R.E 2019) and that the Application is contrary to Section 51 (1) and 53(1) o f the Tax Administration Act Cap 438 (R.E. 2019) and that the Application contravened Section 7(1) o f the Civil Procedure Code Cap 33 (R.E. 2019.) 2. The application is incompetent for containing two different applications for leave to file judicial review and application for interim orders in one chamber summons. This ruling will decide on the afore two legal objections which have been disposed by way of written submissions. The submissions of the 1st Respondent were drawn and filed by Angela Lushagara, Principal State Attorney. The reply submissions were drawn and filed by Yohanes Konda, Advocate for the Applicant. 1. Submission on first ground of objections a. Arguments of the Respondent on the first point of objection The 1st Respondent argued that the Application is incompetent and misconceived for being filed contrary to revenue laws as administered by the Tanzania Revenue Authority. First, the Tax Revenue Appeals Act Cap 408, (R.E. 2019) provides for a forum for hearing and determination of tax disputes. Second, Section 7 o f the Tax Revenue Appeals Act empowers the Tax Revenue Appeals Board to entertain all matters of civil nature in respect of disputes arising from revenue laws administered by the Tanzania Revenue Authority. In light of the foregoing authority, it was the Respondents 'submissions that the Applicant has instituted the present matter before the forum which has no jurisdiction to entertain the same. The Respondent cited the case of China Railway Jiang Engineering Co. (T) Limited v. Continental Services Limited, Commercial Case No. 153 of 2013, High Court of Tanzania (unreported), at page 10, whereby the Court, guided by Section 7 of the Tax Revenue Appeals Act, Cap 408 and the decision in the case of Tanzania Revenue Authority v. New Musoma Textile Limited, Civil Appeal No. 93 of 2009 which held that: .....it is the finding and decision o f the court that, the Tax Appeal Board is the sole forum established to hear and determine tax disputes administered by Tanzania for person aggrieved by a tax decision made by Commissioner General. (Emphasis added) In as similar vein, according to the Respondent, the Tax Administration Act, Cap 438 (R.E. 2019) provides for an avenue for a person aggrieved by a tax decision made by Commissioner General. This is per the provisions of Sections 51 (1) and 53(1) o f the Tax Administration Act. Section 51(1) {supra) provides that: a person aggrieved by a tax decision made by the Commissioner General may object the decision by filing an objection to the Commissioner General within 30 days from the date o f service o f the tax decision. It was the 1st Respondent argument that, Section 53(1) o f the Tax Administration Act provides for the forum for appealing against the objection decision or any other decision or omission by the Commissioner General. According to the said Section, the appeal is to be made before the Tax Revenue Appeals Board. It was therefore the Respondent's position that, filling of the present matter by the Applicant is a clear indication of abuse of the tax laws. The 1st Respondent went on to contend that, despite the openly available channels for recourse provided for by the law, the Applicant has declined to act in accordance with the law by challenging the agency notice issued by the Commissioner General in executing the decree from the Tax Revenue Appeals Tribunal in this Court which has no jurisdiction to hear and determine the tax disputes. The 1st Respondent cited the case of Prosper Ndesokia & Another v. Commissioner General Tanzania Revenue Authority & Another, Miscellaneous Land Case Application No. 973 of 2017, High Court of Tanzania (unreported), in which the court held that: This is not purely a dispute on land ownership but originates from the execution o f a decision done by another tribunal which has jurisdiction to resolve the same. This court has no jurisdiction at this juncture to entertain the same. This is because the Applicant still has an avenue for the remedy sought at the said tribunal. (Emphasis applied) The Respondent concluded its submission on the first point of objection by arguing that the High Court has jurisdiction to try suits of a civil nature. However, Section 7(1) o f the Civil Procedure Code, Cap. 33 (R.E. 2019) provides for an exception of such jurisdiction over all suits of which their cognizance is either expressly or impliedly barred. Thus, the Tax Revenue Appeals Act expressly under Section 7 empowers the Board of adjudicate disputes of civil nature arising from revenue laws. In the light of the above provisions of the law, in view of the 1st Respondent, the High Court do not have jurisdiction to hear and determine revenue disputes. b. Reply submission of the Applicant in respect of the first point of objection The Applicant in reply was of argument that Jurisdiction of the Court is sacrosanct and should not be easily snatched away or interfered. Courts of law of this land are always reminded to guard their jurisdiction jealously in protection of the public and rule of law, as Biron J, observed in Mtenga v. University of Dar es Salaam [1971] HCD No. 247 on page 438 that: 5 ...the Court is and has to be for protection o f the public, jealous with its jurisdiction ana\ will not lightly find its jurisdiction outed. However, in view of the Applicant, the objection for this matter is baseless, vexatious and a misdirection to this Honourable Court. The Applicant argued on the rule of convenience where there is an alternative remedy, the Applicant for prerogative orders ought to, as matter of general rule, exhaust that remedy. According to the Applicant, this is what is referred to as the doctrine of exhaustion in common law jurisdictions. In support of the argument, the Applicant cited the High Court of Tanzania decision in the case of Deusdedit Sylvanus Malebo v. The Chief Court Administrator, the Judicial Service Commission and the Attorney General, Misc. Civil Cause No. 15 of 2018, as pages 6 to 7 (unreported) which was cited with approval in the case of Abdallah Salehe v. Dodoma Wine Company Limited [1990] TLR 113 in which the Court stated: As a general rule the Court will refuse to issue the prerogative order if there is another convenient and feasible remedy within the rich o f the Applicant. It was the Applicant's submission that the question of existence of statutory remedies was aptly clarified by the erstwhile East Africa Court of Appeal in Shah Vershi & Co. Ltd v. The Transport Licensing Board [1971] E.A. 289, where Chanan Singh J. held as follows at page 294: Ordinarily, the High Court will decline to interfere until the aggrieved party has exhausted his statutory remedy.... But this is a rule o f policy, convenience, and discretion, rather than a rule o f law. In other words, the existence o f a right o f appeal is factor to be take into account: it does not bar the remedy (of certiorari), especially where the alternative is not speedy, effective, and adequate... [Emphasis added] Further, the Applicant cited the decision of Mansoor, J. in Joshua Samwel Nassari v. The Speaker of the National Assembly of the United Republic of Tanzania & The Attorney General, High Court Tanzania at Dodoma, Miscellaneous Civil Cause No 22 of 2019 at pages 24 to 27 of the decision. It was the Applicant's reply submission that there is no alternative remedy to the Applicant in the matter at hand. Even if there is an existence of such remedy (which under the circumstance of the present matter does not), is not a bar to this Court's exercise of its inherert jurisdiction in protection of public interest and rule of law to issue such orders as prayed. It was argued in reply that the Applicant exhausted the objection processes, the appeal before the Board under Section 7 and 16 (1) of the Tanzania Revenue Authority Act as well as Section 53(1) o f the Tax Administration Act and later on to the Tribunal and the Court of Appeal of Tanzania. Following the striking out of the appeal, the 1st Respordent issued an Agency Notice to the National Bank of Commerce, and levied TZs 2,945,816,570 the amount of tax in dispute before the Tribunal was TZs 1,708,990,922.63 which was subject of appeal to Court of Appeal, in Appeal No. 117 of 2019. The Respondent unlawfully, unfairly and in abuse of the power conferred under the law and more so in violat or cf the due process of law in execution of the court's decree, collected TZs 2,945,816,570 over and above the amount of tax in dispute. According to the Applicant, an agency notice is not capable of being objected to because the 1st Respondent has embarked into tax recovery measures. An agency notice is not a tax decision that gives Parties chance to litigate, Parties did litigate from the objection stage to the appeal stage. A notice of objection is preferred to for the 1st Respondent to 'review 'by determining his decision on assessment or any other decision affecting the taxpayer. An appeal is only invoked after determination of objection by the 1st Respondent. An agency notice, being a recovery measure, is not a subject of a review by the 1st Respondent or appeal by the Board because it levied to a bank or a third party not the taxpayer; and directs the third party to remit the taxpayer's monies held by the third party to the 1st Respondent. Additionally, the Applicant had two points to substantiate its arguments. One, the 1st Respondent's agency notice, being an execution measure of the decree of the Tribunal, is neither objectionable nor appealable. Two, Agency notice is not the 1st Respondent's decision subject to objection or appeal, but a recovery measure which is issued when a taxpayer (the Applicant in this matter) when an assessment or tax liability has finally been determined. It was the Applicant's submission that there is no alternative remedy under the circumstance where the Respondent invokes recovery measure in a blatant violation of the law and thus the jurisdiction of this Court has properly been invoked. The Applicant was of contention that this is an application for leave to lodge an application for writs of certiorari and mandamus. Neither the 8 Board nor the Tribunal is empowered to determine and issue prerogative orders of certiorari and mandamus. In view of the Applicant, this Court is the only avenue having available exclusive jurisdiction and inherent powers to issue prerogative orders of certiorari and mandamus. The Applicant cited Article 108 o f the Constitution o f the United Republic o f Tanzania, 1977 Cap 2 (R.E. 2008), section 17 o f the Law Reform and Fatal Accident (Miscellaneous Provisions) Act, Cap. 310 (R.E. 2019) and section 2(1) and (3) o f the Judicature and Application o f Laws Act Cap. 358 (R.E. 2019) bestowing this this Court with inherent and exclusive jurisdiction to determine the applications like the present one and issue orders of certiorari and mandamus. To substantiate the argument on prerogative orders by way of Judicial review, the Applicant cited the case of John Mwombeki Byombarirwa v. Regional Commissioner, Kagera and Another [2002] T.L.R 437 in which the court had this to say: Judicial review is an important weapon in the hands o f the Judge o f this court by which an ordinary citizen can challenge an oppressive administration action. And judicial review by means o f prerogative orders (certiorari, prohibition and mandamus) is o f these effective ways employed to challenge administrative action. It is my conviction that the courts would not be too eager to relinquish their judicial review functions simply because they are called upon to exercise it in relation to weighty matters o f a state. It was the Applicant's submission that this Honourable Court enjoys inherent jurisdiction to issue prerogative order. The Court should not relinquish its judicial review function to issue prerogative orders. The matters which concern rule of law. The Commissioner's decision to issue Agency notice without following due process and even deliberately collecting over and above the amount of tax in dispute is unlawful, abuse of discretion and of rule of law which the Court seeks to uphold. It was the Applicant's humble submission that, prima facie this Court has exclusive jurisdiction to issue prerogative orders in this matter because neither the Board nor the Tribunal has powers to issue prerogative orders in this matter. As regards the provisions of Section 7 o f the TRAA read together with section 7 of the Civil Procedure Code, and the decision of Tanzania Revenue Authority v. New Musoma Textiles Limited/ Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 93 of 2009 as quoted in China Railway Jiang Engineering Co. (T) v. Continental Services Limited, High Court of Tanzania (Commercial Division) at Dar es Salaam, Commercial Case No. 153 of 2013, the Applicant made a distinction. In view of the Applicant, the China Railway's case concerned failure to pay a contractual sum and refusal to refund to the Plaintiff amount paid as Value Added Tax (VAT). Agreeably this is a pure civil matter arising from contract and touching an interpretation of the Value Added Tax Act. In New Musoma Textiles case {supra), the concern was payment of compensation for loss or damage of the Respondent's goods in the hand of the Tanzania Revenue Authority. These were purely civil claims for compensation and or for payment of contractual sum arising from revenue laws and in New Musoma Textiles case, the action by TRA in administering tax laws, namely, impounding of the taxpayer's properties. According to the Applicant, the decisions relied by the Respondents as illustrated above are distinguishable, not applicable and cited out of 10 context to the present application. In the present application, the Applicant seeks the orders of this Court on account of the 1st Respondent's violation of the clear provisions of the law and in the circumstance where his decision is neither objectionable nor appealable. In the present application, the Applicant is challenging the unlawful, illegal and procedural impropriety in the Commissioner General's exercise of public authority. The Applicant seeks orders which are not issued by any court or Tribunal other than the High Court. It was submitted in reply that the Applicant is not seeking a refund of the excess amount which was levied by the Commissioner. The Applicant is not also claiming compensation for loss that has arisen out of the 1st Respondent illegality and procedural impropriety. The Applicant seeks for leave to apply for orders of certiorari and mandamus to quash the 1st Respondent's decision and compel compliance with the law, respectively, Leave is sought in order that the High Court is called to determine whether fairness, rule of law and execution procedure laid down under the law were observed. The Court should not relinquish its powers of prerogative orders as there is no other forum(s) bequeathed by the law to determine and grant such orders. In view of the Applicant, the decision to issue an Agency Notice contravenes the mandatory procedure laid down under Rule 24 of the Tax Revenue Appeals Tribunal Rules G.N. No. 222 of 2018 (the TRAT Rules) which requires the decision of the Tribunal to be enforced by making an application to the Tribunal for execution of the order/decree of the Tribunal. Rule 24 o f the Tft/lTRules provides: ii 24(1) The decision o f the Tribunal shall be enforced by making an application to the Tribunal in the Form TRT 6 as set out in the 1st Schedule, and the Chairman or the Registrar as the case may be shall thereafter issue an order authorizing execution. (2) Execution o f the decree or order issued by the Tribunal shall be in accordance with the provisions o f the Civil Procedure code or any other. (3) The application for execution shall be made upon expiry o f thirty days from the date on which the decision o f the Tribunal was made. The Applicant was of contention that, when an application for execution is filed, the Applicant will be able to contest the amount or manner in which the 1st Respondent wishes to execute such order. An instance of such importance has been clearly established in this matter where 1st Respondent collected TZS 2,945,816,570 over and above the assessed and contested amount of TZS 1,708,990,922.63. The 1st Respondent ignored the due process of law and embarking into extrajudicial recovery measures at the detriment of the Applicant. This is an abuse of discretion and stepping into and thrashing the rule of law which this Court has always strived to guard by checking the legality, lawfulness and procedural propriety on the exercise of public functions. To buttress the point, the Applicant cited the case of Inland Revenue Commissioner (IRC) v. National Federation of Self-Employed and Small Business [AC 617] in which Lord Scarman aptly held that: A legal duty o f fairness is owed by the revenue [authority] to the general body o f tax payers. It is however, subject to the duty o f 12 sound management o f the tax which the stature places upon the revenue. The Applicant went on to assert that Revenue Authority owes a lecal duty of fairness and of sound management of tax to the general body of tax payers and the public at large. It is bound to adhere to the law of the land, as correctly put by the Court of Appeal of Tanzania in the Attorney General v. Lesion Neinei & Another [1980] TLR 214 at p. 228 that: The executive, like the Judiciary, it entitled or bound to do what the Constitution and the law o f the Country provide: The Applicant invited the Court to take cognizance of the broad objective of the law, the exercise of discretion, which should be judicious, lawfulness and within the ambit of rule of law when faced with unlawful act by the Revenue Authorities at the detriment of tne taxpayer. On that strength, the Applicant cited the decision of Lo'd Diplock in Inland Revenue Commissioner (IRC) v. National Federation of Self-Employed and Small Business {supra) a decision which has been cited with approval by Courts in Tanzania, such as in Pavia Enterprises v. The Minister for Labour, Youth and Development & Sports and the Attorney General at pages. 7-9 At page. 641 Lord Diplock had this powerful statement on the interest of justice and rule of law in taxation matters: ...It would, in my view, be a grave lacuna in our system of ouolic law if a pressure group like the federation, or even a single public-spirited taxpayer was prevented by outdated technical rules of locus standi from bringing the matter to the attention of 13 the court to indicate the rule of law and get the unlawful conduct stopped. It is not a sufficient answer to say that judicial review of the actions of the officers or departments of central government is unnecessary because they are accountable to the Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only Judge; they are accountable to a court of justice for the lawfulness of what they do, and that, the Court is the only Judge... (Emphasis applied] In view of the Applicant, the 1st Respondent is accountable to this Court for the unlawfulness of what he does, for this matter the issuance of agency notice and the forceful collection of the contested tax over and above the amount in dispute. A compliant tax payer like the Applicant should not be prevented on technical aspects which is not the case in the matter at hand, as she brings to the attention of the Court, indications that rule of law was violated and the conduct of the 1st Respondent was unlawful. c. Analysis on the first point of objection and decision thereof I have vigilantly considered the submissions of both parties on the jurisdiction point. I agree with the Applicant that in an application for writs of certiorari and mandamus neither the Tax Board nor the Tax Tribunal have jurisdiction. In the case of Felix Mselle v. Ministers for Labours and Youth and Three Others, Misc. Civil Cause No. 221 cf 1999 (unreported) Kyando, J. stated that: 14 Judicial review is the power o f the High court to exercise its supervisory jurisdiction over proceedings and decision o f inferior tribunals or authorities, bodies or person charged with the performance o f public act, duties, not statutory but inherent power o f the High Court. It should however be understood that exhaustion o f local remedies is the corner stone o f judicial redress o f every disputed issue. Indeed, although the High Court is the only avenue having exclusive jurisdiction to issue prerogative orders, the Court of law should not rush to exercise such jurisdiction if the Applicant has not exhausted the available local remedies. It is a settled law that litigant should first exhaust other lawfully available remedies under statutory or case law, before they can seek remedies under the Section 2 (1) and (3) o f the Judicature Application o f Laws Act Cap 358 (R.E. 2002); and Rule 5(1), (2), (3) and (6), as well as Rule 7(1) and (5) o f the Law Reform (Fatal Accidents and Misc. Provisions (judicial Review Procedure and Fees) Rules, 2014 [GN No. 324 o f 2014]; the duty to exhaust other lawfully available remedies before resorting to and duties remedies is borne out from my reading of Section 2 (1) and (3) o f the Judicature and Application o f Law Act which read: 2 (1) Save as provided hereinafter or in any written law expressed, the High Court shall have jurisdiction in civil and criminal matters. (3) Subject to the provisions of this Act, the Jurisdiction of the High Court shall be exercised in conformity with written laws which are in force in Tanzania on the date which this Act comes into operation....and may hereafter be modified, amended or replaced 15 by other provisions in lieu thereof or under any such Act or Acts of the Parliament of Tanzania. A literal interpretation, Section 2 (1) and (3) the Judicature and Application o f Law Act suggests that recourse to the High Court of Tanzania for judicial review should only be entertained if local remedies have been exhausted in any relevant authority within the reach of the Applicant. If there are other remedies, the Court shall have no jurisdiction to grant the same. That is why a leave must be sought in accordance to rule 5 o f the Law Reform (Fatal Accidents and flfsc. Provisions (Judicial Review Procedure and Fees) Rules, 2014. In this matter, the Applicant was aggrieved with the decision of the Commissioner General of TRA. As properly submitted by the Respondent, under Section 7 o f the Tax Revenue Appeals Act, the remedy available to the Applicant was to appeal to the Tax Revenue Appeal Board. If further aggrieved, under the provisions of Section 53 (3) o f the Tax Administration Act, Cap 438 (R.E. 2019) and Section 16 (4) o f the Tax revenue Appeals Act, Cap 408 (R.E. 2006) the Applk:ant could appeal to the Tax Appeal Tribunal. This means that the relief(s) and remedies available under the Tax Revenue Appeals Act are statutory as reliefs and remedies that are available under the Law Reform (Fatal Accidents and Misc. Provisions (Judicial Review Procedure and ^ees) Rules, 2014. It follows therefore, that before the Applicant seeks for the leave to apply for orders of certiorari and mandamus to quash the 1st Respondent's decision, it must have exhausted the tax revenue forums well established under the Tax Revenues Appeals Act. This is in 16 accordance to the provisions of Section 7 (1) o f the Civii Procedure Code {supra). It is the Tax Appeal Board which is entitled to entertain a matter of challenging the legality of the decision of the Commissioner General. If this court will dare to entertain such kind of appeal which is brought by a back door in a way of prerogative orders, it will create unnecessary forum shopping among litigants of tax disputes. Above all, I agree with the Applicant that an agency notice is not capable of being objected to because it is not a tax decision that gives Parties chance to litigate. However, the Applicant has admitted that the tax dispute was determined by the Tax Board, Tax Tribunal and the Court of Appeal by appeal process. As conceded by the Applicant, the records, however, shows as admitted by the Applicant, that the appeal to the Court of Appeal was struck out. It was not dismissed. The Court of Appeal of Eastern Africa in the celebrated case of Ngoni Matengo Cooperative Marketing Union Ltd v. AM Mohamed Osman (1959) EA 577 at page 580 distinguished the meaning of "striking out" and "dismissing" an appeal, thus: ...this court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not properly constituted appeal at all. What is this court ought strictly to have done in each case was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it: for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable of being disposed of. Basing on the decision in the Ngoni Matengo case, the Court of Appeal of Tanzania in Cyprian Mamboleo Hiza v. Eva Kioso and Mrs. 17 Semwaiko, Civil Application No. 3 of 2010 Court of Appeal of Tanzania at Tanga at page 3 second paragraph in which the Court observed: "Presumably" if the application had not been dismissed the Applicant could have gone back to the high court and start tne process of afresh. In the light of the foregoing, it is the findings of this Court that, the Applicant has not exhausted the available local remedies. Since its appeal was strike out by the Court of Appeal, the Applicant had a right to go back to the Court of Appeal and start the appeal process afresh in order to exhaust the tax available local remedies. It follows therefore, that it will be an abuse of the Court process to revert on inherent powers of the High Court seeking for the prerogative orders of certicrari and mandamus prior to exhausting tax local remedies. The Pavia Enterprises case {supra) is distinguishable to this case because in that case the Court was faced with issues concerning outdated technical rules of locus standi from bringing the matter tc the attention of the court while in this case there is no issue of technicaJities in accessing the court. The relevant issue here is on exhausting the available tax local remedies. The Lesion Neinei & Another case {supra) is relevant to this case as it requires the court to adhere to the legal and constitutional principles. The legal requirement in this case as aptly stated is for the Applicant to exhaust the tax local remedies. It is also valid as found in Mtenga v. University of Dar es Salaam case that the Court must be jealous with its jurisdiction. However, being jealous on matters which are the sole domain of another body (tax bodies) does not serve the intended objective. It is not stated by the 18 Applicant if it was satisfied with the decision of the Tax bodies. If not, there is no clear explanation as to why the Applicant never refiled its appeal afresh before the Court of Appeal after the first one was strike out. To the contrary, the Applicant has come to this Court through another window. It is the findings of the Court that writ of certiorari and mandamus, though are the domain of the High Court, should only be preferred after one has exhausted the available local remedies. Otherwise, there will be a danger of misusing such jurisdiction after one has lost the case before the Appellate Court. The Court do further align with the findings in the case of Shah Vershi & Co. Ltd {supra) that ordinarily, exhaustion of available local remedies is a rule of policy, convenience, and discretion, rather than a rule of law. However, the discretion has to be exercised judiciously. In clear instances like the one at hand, where the Applicant's appeal has been thrown out by the Court of appeal and still there is another chance for the Applicant to refile such appeal, prudence and convenience would dictate the Applicant to exhaust its appeal right. Otherwise, allowing of the instant application will be pure legalising forum shopping. The Court could entertain this application only if, the Applicant did admit that disputed amount was valid but the Respondent has taken over and more the right amount. The Court is of further equal findings with the decision in the cited case of John Mwombeki Byombarirwa that Judicial review is an important weapon in the hands of the Judge and it cannot relinquish its judicial review functions on reason of exercising its powers in relation to weighty matters of a state. However, the public interest (weight matters) in this case covers the very Applicant as an investor on the statutory duty to 19 pay tax and the Respondent's duty in collecting fair taxes for collectively benefit of citizens. The dispute on the tax, therefore must be resolved by the tax legal system prior resorting to judicial review process. 2. Submission on Second ground of objection a. Argument of the 1st Respondent on the second point of objection It was the contention of the 1st Respondent that, the application is incompetent for containing two different applications for leave to file judicial review and application for interim order in one chamber summons. It was the Respondents' submission that these are two distinct prayers which are provided for under different enabling provisions and do not fall in the same transaction. Further, it was the Respondent's submission that the Applicant has brought this Application under Section 17 (2) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Section 2(1) and (3) o f the Judicature and Application o f Laws Act, and Rule 5 (1), (2) and (3), Rule 7(1) & (5) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules. The Applicant is seeking for interim orders altogether with leave for judicial review under provisions of Laws governing judicial review. According to the 1st Respondent, the provisions of the law cited by the Applicant in this Application are for one prayer to grant leave for judicial review and do not cater for the remedy of interim orders. Interim orders enabling provision is Order XXXVII Rule 1 o f the Civil Procedure Code, Cap.33 (R.E. 2019). It was the Respondents' submission that the Application is an omnibus application as it contains distinct prayers 20 under different legislation in one chamber summons, hence incompetent. The 1st Respondent cited the case of Mohammed Salmini v. Jumanne Omary Mapesa, Civil Application No. 102 of 2014, Court of Appeal of Tanzania, (unreported). In that case, the Court of Appeal held that: As this court held for time(s) without number an omnibus application renders the application incompetent and is liable to be struck out The Respondent argued that the Rules cited by the Applicant as enabling provisions of the application provided for leave to file judicial review and none of them talks of applications for interim orders despite the fact that the Judge may grant them. It was the 1st Respondent's argument that, under the rules, it was never envisaged that an application would file unrelated applications. Further, there is no room in the Rules for a party to file two applications in one. Since the application are provided for under different provisions, it is clear that both cannot be lumped up together in one application. The 1st Respondent cited the case of Rutagatina C.L. v. The Advocates Committee and Another, Civil Application No. 98 of 2010, Court of Appeal of Tanzania (unreported) at page 8, in which the Court of Appeal held that: ...in totality o f the foregoing, we are satisfied that the rules do not provide for an omnibus application. For this reason, we hereby strike out this omnibus application. (Emphasis added) b. Reply submission by the Applicant on the second point of objection 21 According to the Applicant, the Application is principally, for all purposes and intent, for leave to apply for prerogative orders of certiorari and mandamus. It is apparent from the face of all pleading (the certificate of urgency, the chamber summons, the affidavit and the statement) that the Applicant seeks before this Court leave to apply for orders of certiorari and mandamus. It was submitted that the Applicant was not seeking an interim order independently rather it is a consequential order aimed at maintaining status quo for the 1st Respondent not enforcing the agency notice until the application for leave was determined by the Court. The Applicant went on to contend that it is gathered from Annexure Vodacom 12 that the Agency Notice directed the National Bank of Commerce (NBC) to immediately release the amount demanded. The Application for leave could not stop the 1st Respondent from proceeding to collect the taxes from NBC through extrajudicial recovery processes. Moreso, the Court is called to determine an application for leave and not both leave and interim reliefs, should the application for leave fail then the Court will have no basis to grant interim orders. To put it in other words, the Applicant replied that interim orders for this matter are not standing alone. They are conditional upon leave being granted a case which an application will be determined. The Applicant contended that during determination of an application which touches the lawfulness, fairness and propriety of an agency notice, the 1st Respondent should not proceed to collect the taxes. To back up the argument, the Applicant cited the case of Prince Peace Company Limited v. National Housing Corporation (1999) TLR 376 in which the Court held that: 22 The court has power to make any interlocutory order (like the interim order in the present application) before the decision is made on the question o f jurisdiction if the Court is satisfied that the order will protect the interest o fjustice. (Emphasis applied) Without prejudice to the above submissions, it was the Applicant's argument that, even if the application for interim order was a separate application, which is not true, the prayer has been overtaken by event after the Respondent's forcefully recovery of TZs 2,945,816,570 over and above the disputed amount on 17th July, 2020. c. Analysis and determination of the second ground of objection. As a general rule, Courts discourages unnecessary multiplication of cases. The Court of Appeal of Tanzania in the case of MIC (T) Ltd v. Minister for Labour and Youth Development and Another, Civil Appeal No. 103 of 2004 (Court of Appeal at Dar es Salaam) (unreported) was faced with an Application with a combination of 3 prayers. The Court in its decision stated that: Courts abhor multiplicity and encourage Applicants which may conveniently be combined. The current application is one o f those which may conveniently be combined because one follows the other. There is no law prohibiting combination o f prayers. (Emphasis added) Indeed, the current general rule is that, combination of prayers in one Chambers summons is acceptable provided the two Applications are interlinked and arise from the same law. In the case of MIC Tanzania 23 Ltd v. Minister for Labour and Youth Development and the Attorney General, Civil Appeal No. 103 of 2004 (unreported), the Court stated that: ...we are satisfied that; the three prayers were properly combined in one Chamber Summons. They were not diametrically opposed to each other, but one easily follows the other. Once extension o f time is granted then an application for leave follows. As the Respondents appear to concede, one leave is granted, the court may, in its discretion, grant o f refuse to grant an order for stay o f execution of the challenged decision. Viewed from this perspective, the reasons for combining the three prayers in one Chambers Summons becomes obvious. The application was, therefore, competently before the High Court. I will go along with what Mapigano, said in Tanzania Knitwer Ltd v. Shamshu Ismail (1989) TLR 48 that combination o f two prayers under one application is not bad in law since courts abhor multiplicity. (Emphasis applied) In this Application, however, as properly submitted by the Respondent; firstly, the Applicant has wrongly combined an application for leave to apply for certiorari and mandamus, secondly, for interim orders. The two applications ought to be brought under distinct application. In the cited case of Rutagatina C.L. v. Advocates Committee and Another {supra), the Court stated that: An application for extension o f time application for leave to appeal are to be made differently, since they are provided for under two different provisions o f law. 24 In this application, it is even worse, the Applicant has not cited any Drovision moving the Court to grant interim orders. In the case of Glady Muzyenga v. Yusuph Ngarema, Misc. Civil Application No. 92 of 2017, this court gave three conditions which, if they exist, the respective applications ought not be combined. One such condition is where the combined prayers arise from two different laws. The combined applications arise under two different laws. The application for judicial review is brought under Section 17 (2) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 (R.E. 2002), Section 2 (1) and (3) o f the Judicature and Application Laws Act, Cap 358 (R.E. 2002); Rules 5 (1) (2) and (3), 7 (1) and (5) o f the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N, 324 o f 5th September, 2014. while the Application for interim orders if even not backed up with any relevant provision of the law but it ought to be brought under Order XXVII Rule 1 o f the Civil Procedure Code, Cap 33 (R.E. 2019). It follows, therefore true, as submitted by the Respondent, that the two applications, are distinct and arise under two different laws and thus they ought not to be combined. The Applicant has submitted that the interim application has been overtaken by events. I can gather nothing from the affidavit supporting the application to that effect. It is just a mere statement from the bar. In the end, I sustain the second ground of objection and proceed to struck out the application with costs for being an omnibus application. 3. Submissions on the third ground of objection 25 a. Argument by the Respondent on the third ground of objection In the course of writing the submissions, the Respondent raised and argued another preliminary point of law which was not formerly raised. It was to the effect that the Affidavit in support o f the Application is incurable defective for being sworn by an incompetent person. The 1st Respondent argued that the Affidavit was sworn by Ms. Hadija Kinyaka, who is also an Advocate for the Applicant. The Affidavit has been deposed by the Advocate on her own personal knowledge and understanding of the matter. The Respondent was, therefore of view that, the learned Counsel has not disclosed any source of information or how she obtained the material facts. It was the Respondent's contention that paragraph 2 and 17 contains facts which by their very nature were not within the knowledge of the Advocate as averred. Further, the contents of paragraph 16 of the Affidavit presupposes the existence of a source of information to the Counsel of which was not verified. Paragraph 16 read as follows: On 18th July, 2020, the Applicant was informed by its banker, National Bank o f Commerce, that the First Respondent levied against the bank, an Agency Notice dated l ? h July, 2020 requiring National Bank o f Commerce to immediately remit to the Respondent from the account o f the Applicant, the sum o f TZs 2,945,816,570.87 on the allegation that the Court o f Appeal o f Tanzania had given a judgment in respect o f Appeal No. 117 o f 2019 on 4h July, 2020. A copy o f the First Respondent's Agency 26 Notice dated 17th July, 2020 is appended marked Annexure Vodacom 12. It was further view of the Respondent; the above quoted paragraph makes such information hearsay since the Applicant as mentioned has not sworn an affidavit as well. In the case of Elihaki Giliad Mbwambo v. Mary Mchome Mbwambo and Another, Miscellaneous Application No. 449 of 2019, High Court of Tanzania (unreported), the Court while citing the holding in the case of Benedict Kimwaga v. Principal Secretary Ministry of Health, Civil Application, No. 31 of 2000 (CA), at page 8 had this to say: ..Jfan affidavit mentions another person, that other person has to swear an affidavit However, the information o f that other person is material evidence because without the other affidavit it would be hearsay. (Emphasis added) The Respondent added that Rule 5 (2) o f the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN No. 324 o f 214 requires an application to be supported by an affidavit verify the facts relied upon by the Applicant(s). Thus, although a Counsel can make an affidavit in proceedings in which he is representing the party, there are limits in respect of the same. The 1st Respondent cited the case of Lalago Cotton Ginnery and Oil Mills Co. Ltd v. The Loans and Advances Realization Trust (LART), Civil Application No. 80 of 2002 whereby the Court of Appeal of Tanzania, held that: An Advocate can swear and file an affidavit in proceedings in which he appears for his client, but on matters which are in the 27 advocate's personal knowledge only. For example\ he can swear an affidavit to state that the appeared earlier in the proceedings for his client and that he personally knew what transpired during those proceedings (Emphasis added). The Respondent argued that, contrary to the foregoing authority, the Counsel for the Applicant in the present matter has extended her limits by deposing to fact which were definitely not within her knowledge and she did not even disclose the source of information in her verification clause to that respect. In final view of the Respondent, the whole Application is incompetent for being accompanied by an affidavit sworn by an incompetent person. b. Reply submission by the Applicant on the third ground of objection The Applicant submitted that this objection was not properly brought and filed before this Court. No notice of preliminary objection was brought before this Court by the Respondent other point of law. Further, the objection relates to matters that will need proof by way of evidence as to the deponent's knowledge of the matter through perusing records. Under the principle enshrined in Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors Ltd (1969) EA 696, the same cannot constitute a preliminary objection on a point of law. The Applicant prayed at the outset that the point raised without notice and leave of the Court should be disregarded for being an abuse of the Court process. Without prejudice to the above, it was replied by the Applicant that the 2nd Respondent has grossly and erroneously misdirected himself as to 28 the depositions made in the said paragraphs. The deponent dull/ authorized and instructed by the Applicant to depose to the fact whicn she is well acquainted with. She has been representing the Applicant in the dispute since its outset. The content of paragraph 2 of the affidavit on the 1st Respondent's issuance of final assessment and subsequent Appeal for the Board in 2014 is a fact best known to the deponent as she was working on the Applicant's tax matters during her services with FK Law Chambers, the then Applicant's Counsel. It was replied further that paragraph 16 of the affidavit is on the issuance of agency notice which the Counsel is knowledgeable by virtue of being the Counsel for the Applicant. The Counsel has been involved at each stage of the dispute and was aware of the issuance of the agency notice by the 1st Respondent culminating to the Counsel's issuance of the letter to the 1st Respondent on 20th July, 2020 appended as Annexure Vodacom A2 referred to in paragraph 8 of the reply to counter affidavit. Lastly, the Applicant argued that paragraph 17 on violations of law are apparent fact which the deponent is knowledgeable through fact and law. Being the Counsel for the Applicant handling the matter, the deponent is well placed to depone on the said facts which are not hearsay. c. Analysis and determination of the third ground of objection Though I find the third ground of objection to have improperly baen raised for lack of notice, it is manifest, however, from the contents of paragraphs 2, 16 & 17 of the supporting affidavit, the information of the 29 banker who informed the deponent is crucial. Otherwise, such evidence remains a hearsay. The cited decision of Benedict Kimwaga sheds light on that principle. Further reading can be gathered in the case of Jacqueline Ntuyabliwe Mengi & 2 others v. Benson Benjamin Mengi and 5 Others, Miscellaneous Civil Application No. 486 of 2019, High Court of Tanzania, Dar es Salaam District Registry (unreported). In the premises, I have no other option than to expunge the hearsay evidence as contained under paragraphs 2, 16 & 17 of the supporting affidavit. III. Conclusion The summary of it is that, all grounds of objection are sustained on merits. The application has been preferred after the appeal before the Court of Appeal was strike out. The Applicant still had a legal right to file its appeal before the Court of Appeal. As such, the Application stands dismissed with costs for failure to exhaust tax local remedies within Tax Revenue Appeals Act. Worse, the Applicant combined two distinct application into one application. It could only be acceptable if the two applications are falling into the same law. But the instant applications are under different laws. The remedy thereof is to strike out the application. The expunging of paragraphs 2, 16 and 17 of the supporting affidavits, would however, leave the application intact as there are still enough material to back up the application. In the totality of the Ruling delivered and dated 10th day of December, 2020 in the presence of Counsel Beda Kapinga for the Applicant and in the absence of the Respondents. Right of Appeal explained. 31