Commissioner General (TRA) vs Samson Ngwalida (Civil Application No. 155 of 2013) [2014] TZCA 2389 (14 February 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 155 OF 2013 COMMISSIONER GENERAL (TRA) Versus ................••... APPLICANT SAMSON NGWALIDA ...... ~ ................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam RULING 13 th & 14 th February, 2014 JUMA, J.A.: By a Notice of Motion which was filed on 26/8/2013 under Rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the Commissioner General of Tanzania Revenue Authority who is the applicant, is applying for an extension of time in order to enable the applicant to file a fresh Notice of Appeal and a fresh appeal to this Court. should the Court grant the applicant his prayer, he will to appeal from the decision of the Tax Revenue Appeals Tribunal, in Customs & Excise Appeal No. 2 of 2008 (Twaib, J. Chairman). The Notice of Motion is supported by two affidavits, sworn to by Felix Kandidus Haule and Marcel Busegano, learned Advocates. 1 I

The application is opposed by the respondent, Samson Ng'walida. Mr. • Constantine Mutalemwa swore on the respondent's behalf, an affidavit in reply together with a Notice of Preliminary Objection. The first ground of objection contends that in terms of section 25 (2) of the Tax Revenue Appeals Act, Cap. 408 R.E. 2006 read together with section 11 (1) of the Appellate Jurisdiction Act, Cap. 141 and Rule 47, this Court lacks requisite jurisdiction. According to this jurisdictional ground, the applicant should have first gone to the Tax Revenue Appeals Tribunal instead of coming to this Court. The second ground of objection contends that the Notice of Motion is defective for failing to state grounds ground for the relief sought as required by Rule 48 (1). At the hearing of the preliminary points of objection on 14 th February, 2011, the applicant was represented by Mr. Juma Salum Beleko, learned counsel. Mr. Constantine Mutalemwa, learned counsel represented the respondent. Mr. Beleko readily conceded the first point of objection to the effect that the applicant should have first sought an extension of time from the Tax Revenue Appeals Tribunal instead of seeking that extension in this Court. He however prayed that the applicant should not suffer costs. 2 .t

Following this concession, Mr. Mutalemwa urged the Court to strike out the • application. He did not press for costs. It is perhaps appropriate to briefly survey the background facts providing the context of the jurisdictional ground of objection. This background can be discerned from the affidavit of Felix Kandidus Haule. On 10 th August, 2012 the Tax Revenue Appeals Tribunal delivered its judgment which was in the respondent's favour. The aggrieved applicant lodged his Notice of Appeal on 4 th September, 2012. The applicant followed the Notice up with his record of appeal (Civil Appeal No. 102 of 2012) which he filed on 5 th November, -2012. On 4 th February, 2013 the respondent filed his Notice of Motion to challenge the competence of the applicant's Civil Appeal No. 102 of 2012 on the ground that record of appeal was served on respondent beyond the prescribed period. This Court heard the respondent's motion and on 29 th July, 2013 struck out the Civil Appeal No. 102 of 2012. Undeterred, the applica,nt filed this application on 26 th August, 2013. It is common ground that since the applicant was aggrieved by the decision of the Tax Revenue Appeals Tribunal, section 25 (1) of the Tax 3

't Revenue Appeals Act No. 2 of 2008 allows the applicant to lodge an appeal • to this Court. Section 25 states: 25.-(1) Any person who is aggrieved by the decision of the Tribunal may prefer an appeal to the Court of Appeal. Subsection (2) of section 25 of Act No. 2 of 2008 spells out that the procedure to be followed on an appeal from Tax Revenue Appeals Tribunal is the one provided by the Appellate Jurisdiction Act, Cap. 141 and the Tanzania Court of Appeal Rules, 2009: · 25 (2).- Appeal to the Court of Appeal shall lie on matters involving questions of law only and the provisions of the Appellate Jurisdiction Act and the rules made thereunder shall apply mutatis mutandis to appeals from the decision of the Tribunal. Appeals to this Court are instituted by Notice of Appeal filed under Rule 83 which states: 83.-(1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court. 4

• In so far as an appeal against the decision of Tax Revenue Appeals Tribunal is concerned, the applicant is required by the above cited Rule 83 to lodge its Notice of Appeal with the Registrar of the Tax Revenue Appeals Tribunal. Further, Rule 47 provides for the procedure governing applications to this Court, including applications for extension of time to file a fresh Notice of Appeal to this Court. Rule 47 states: 47. Whenever application may be made either to the Court or to the High Court, it shall in the first instance be made to the High Court or tribunal as the case may be, but in any criminal matter the Court may in its discretion, on application or of its own motion give leave to appeal or extend the time for the doing of any act, notwithstanding the fact that no application has been made to the High Court. From the above-cited provisions governing procedure for appeals to this Court, the pertinent issue for my determination is whether the applicant can, without passing through Tax Revenue Appeals Tribunal, directly apply to this Court to seek extension of time. This is a jurisdictional question. 5

In CIVIL APPLICATION NO.7 OF 2009, Sadallah I. Sadallah vs. SBC Tanzania Limited (unreported) we reiterated that an applicant who is required to first lodge any application to the High Court cannot prematurely come straight to this Court without first passing through the High Court. This principle of law inevitably covers applications for extension of time to file Notice of Appeal. This Court expounded the applicable principle further in CRIMINAL APPLICATION NO .. 1 OF 2010, 1. Prosper Baltazar Kileo, 2. Huruma John vs. R. (unreported), where we observed that whereas section 11 of the Appellate Jurisdiction Act, Cap. 141 confers concurrent jurisdiction to the High Court to grant extension of time for the doing of any act after the expiration of that time, Rule 47 expounds this principle by providing that "whenever application may be made either to the Court or to the High Court, it shall in the first instance be made to the High Court or tribunal as the case may be... '~ We went further to insist that only in criminal matters can this Court relax its strict application of Rule 47 and exercise its discretion to extend the time for the doing any act when the applicant had not applied first to the High Court. As conceded by the two learned Advocates for the applicant and for the respondent in course of the hearing of this application, I shall sustain 6

the first ground of objection contending that the applicant in the present civil application should not have prematurely come to this Court to seek an extension of time in order to file a Notice of Appeal. Instead, the applicant should have first filed that application in the Tax Revenue Appeals Tribunal. In the result, this application before me is hereby struck out for being incompetently before the Court. Each party shall bear own costs. It is so ordered. DATED at DAR ES SALAAM this 14 th day of February, 2014. I.H. JUMA JUSTICEOF APPEAL I certify that this is a true copy of the original. ,i'!< . .. ,~ .. ,e,t;·"''-"t'. ,.;._ .. -·' '.:::.:.·· . ··:'t ; '.(>, . • . ••j-- !' zu REGISTRAR OURT OF APPEAL 7