20101005 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 149 OF 2008 WENCY M. SETONGA -~·············· APPLICANT )

VERSUS TANZANIA REVENUE AUTHORITY ...... RESPONDENT Date of last Order : 20/9/2010 Date of Ruling 5/10/2010

RULING Shangwa, J. Before this Court is an Application for execution of the decree of the Court of the Resident Magistrate at Kisutu in 2 Civil Case No. 41 of 2003, and for a certificate mentioning the money payable under the decree by the Permanent Secretary to the Treasury, Ministry of Finance i.e. Tshs. 500,593,551/=. The Application is supported by affidavit of Wency M. Setonga (Applicant). At paragraphs 2, 3 and 6 of the Applicant's affidavit, it is respectively averred that on 30 th March, 2006, the Court of the Resident Magistrate at Kisutu in Civil Case No. 41 of 2003 gave judgment and decree in his favour and that the Respondent appealed to the High Court against the judgment and decree which were given by the said court but that the appeal was struck out by the High Court in its Ruling given on 18/9/2007 in Civil Appeal No. 124 of 2006, and that so far, there is no order of the court staying the execution of the decree and no appeal which is pending I 3 against the judgment and decree of the court of the Resident Magistrate at Kisutu in Civil Case No. 41 of 2003. Learned counsel for the Applicant, Mr. Matunda submitted at page one, paragraph 5 of his written submissions that in actual fact the Respondent attempted to challenge the judgment and decree of the court of the Resident Magistrate at Kisutu but his appeal was dismissed by this Court in Civil Appeal No. 124 of

2006, and that there was no further appeal to the Court of Appeal against the dismissal of his appeal by this court. Mr. Matunda submitted at page two paragraph four of his written submissions that "since there is no court order staying execution of the decree, and since the decree is not being challenged anywhere, and since there is no reason to 4 delay the Applicant's enjoyment of his success, this court should issue a certificate to the Permanent Secretary to the Treasury so that he satisfies the Appellant's decree." Learned counsel for the Respondent, Mr. Kalolo opposed the Application on the following grounds:- ]. That the decree is invalid for bearing a wrong date.

2. That the Attorney general has not been .joined. He submitted that whereas the decree in issue is dated 9/8/2006, the judgment from which it was extracted 1s dated 20/3/2006. He contended that as the decree 1s wrongly dated, it is incompetent for being executed as it contravenes the provisions of 0. XX r. 7 of the Civil , t' 5 Procedure Code Cap. 33 R.E. 2002 which provides as fallows and I quote: " The decree shall bear the date of the day on which the judgment was pronounced and, when the judge or Magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. " He correctly submitted that in High Court Civil Appeal No. 124 of 2006, Shaidi, Judge ( rtd) struck out the Applicant's appeal for not being accompanied by a proper decree which the Applicant wants to be enforced or executed. He further submitted that under Section 29 of the Tanzania Revenue Authority Act [ Cap 399 R.E. 2002], I 1· 6 it is provided that in any civil proceedings where the court has to issue an order for execution or attachment against the Authority, the provisions of S. 15 of the Government Proceedings Act shall apply to the suit as if the suit were a proceeding by or against the Government, the Authority were a Government Department. Furthermore, he submitted that Section 10 of the Government Proceedings Act provides that: " Subject to

the provisions of any other written law, Civil Proceedings by or against the Government shall be instituted by or against the Attorney General." He went on to submit that this application for execution is a Civil Proceeding against the Government, '\ . \ 7 and that it must be brought against the Attorney General. He contended that failure to include the Attorney General in these proceedings renders the Application incompetent. It is not in dispute that the decree which is sought to be executed is wrongly dated. It is not in dispute also that the Attorney General has not been joined in these proceedings as required by law. With respect to Mr. Matunda, this court Shaidi, Judge (rtd) did not dismiss Civil Appeal No. 124 of 2006. The record shows that Shaidi, Judge (rtd) struck out the appeal on grounds that it was accompanied by an improper decree. It is the same decree which the Applicant seeks this court to execute. As a matter of fact, no effarts to rectify the same have been made by the Applicant who is seeking for its enforcement or execution. \ ' ... ( t. ' 8 For me, I share a similar view with counsel for the Respondent that a decree which does not bear the date of the day on which the judgment was pronounced such as the decree which the Applicant needs to be enforced or executed by this court offends the provisions of 0. XX r. 7 of the Civil Procedure Code [ Cap. 33 R.E.

2002]. Therefore, the invalidity of this decree is unquestionable. Now can this court enforce a decree which is invalid by issuing a certificate to the Permanent Secretary to the Treasury to satisfy it. The answer to this question is no. Also, I share the same view with counsel for the Respondent Mr. Kalolo that as Tanzania Revenue Authority is deemed to be a Government Department under the Provisions of Section 15 of the Tanzania Revenue Authority Act and as Section 10 of the Government Proceedings Act requires that Civil Proceedings against the Government 9 have to be instituted against the Attorney General, this Application is incompetent for non - joinder of the Attorney General as well. For these reasons, I hereby strike it out but I make no order as to costs. V A.Shangwa

JUDGE 5/10/2010 Delivered in open court this 5 th day of October, 2010 in the presence of the Applicant and Mr. Amour for the Respondent. A.Shangwa

JUDGE 5/10/2010