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Commissioner General, Tanzania Revenue Authority v Parastatal Pensions Fund (Civil Application No. 78 of 2005) [2006] TZCA 57 (3 May 2006)

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IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

CIVIL APPLICATION NO. 78 OF 2005

COMMISSIONER GENERAL,
TANZANIA REVENUE AUTHORITY …………………………. APPLICANT
VERSUS
PARASTATAL PENSIONS FUND ………………………….. RESPONDENT

(Application for Stay of Execution from the Judgment of the Tax Appeals Tribunal of Tanzania at Dar es Salaam)

(Senkoro, Vice Chairman)

dated the 13th day of September, 2004
in
Revision Application No. 8 of 2003

6 April & 5 May 2006
-----------
R U L I N G

NSEKELA, J.A.:

         In this application, the applicant, The Commissioner General of the Tanzania Revenue Authority, is applying for an order that the execution of the orders in Tax Revenue appeals Tribunal Application No. 8 of 2003 be stayed pending the hearing and determination of an appeal to this Court. On the 25.6.2005 the respondent, Parastatal Pensions Fund, through Maro & Company, Advocates, filed under Rule 100 of the Court of Appeal Rules, notice of preliminary objection challenging the competency of the application on three grounds, namely ?
1.      
That the application is hopelessly time barred,

Alternatively

2.      
That the Notice of Motion is totally defective both in form and substance.

Alternatively

3.      
That the application is incompetent for
want of order sought to be stayed.

         At the hearing of the application Mr. E. Maro, learned advocate, represented the respondent while Mr. Lugaiya learned advocate represented the applicant. Mr. Maro abandoned the second ground of complaint but argued the remaining two grounds.

         As regards the first ground of complaint, Mr. Maro submitted that the basis of the applicantfs instant application has its genesis in a Ruling by the Tax Revenue Appeals Tribunal in Revision Application No. 8 of 2003 (gTRA 1h) which was delivered on the 13.9.2004. The Notice of Motion by the applicant was filed on the 2.6.2005, that is eight months nineteen days late reckoned from the 13.10.2004. the learned advocate conceded that both the Appellate Jurisdiction Act and Rules made thereunder have not prescribed the period within which an application for stay execution should be filed. He added however that through decided cases, this Court has now prescribed a period of limitation of sixty days from the date on which the decision sought to be stayed was made. (See: James Masanja Kasuka v. George Humba, Civil Application No. 2 of 1997 (unreported); Suleman Ally Nyamategi & Two Others v. Mwanza Engineering Works Ltd, Civil Application No. 138 of 2002; Commissioner General, Tanzania Revenue Authority v. National Social Security Fund (unreported). According to Mr. Marofs computation of time, the current application should have been filed not later than the 12.11.2004, and since it was filed on the 2.6.2005, it was time-barred.

         The second alternative ground of complaint was to the effect that the order sought to be stayed was not annexed to the Notice of Motion. Mr. Maro again submitted that there is no specific rule governing this aspect but this has been the result of decided cases by this Court.

         The response by Mr. Lugaiya, learned advocate for the applicant was understandably brief. He readily conceded the first ground of complaint and had nothing useful to add. As regards the second ground of complaint, the learned advocate submitted that the Ruling in Revision Application No. 8 of 2003 between the same parties was attached to the Notice of Motion. It was Mr. Lugaiyafs view that the inclusion of this Ruling was sufficient compliance with the practice as evolved by the Court.

         Let me commence with the second ground of complaint. Admittedly, the requirement that a copy of the decree or order sought to be stayed should accompany an application for stay of execution is a mere practice of the Court and not a statutory requirement. In Civil Application No. 84 of 2003, Hassani Ramadhani v. Saada Mussa (unreported), a single Judge of this Court, (Mroso, J.) stated thus ?

gIt is the practice of the Court and not the requirement of the rules to require the attachment of the order to the application. Nonetheless, it is also common ground in my view that the practice and procedure evolved by the Court in connection with appeals or applications has the same legal force as the express provisions of the rules.h

         In Civil Reference No. 1 of 2005, Sugar Board of Tanzania v. 21st Century Food & Packaging Ltd. and Two Others, the Court discussed a number of decisions, including Blue Star Service Station v. Jackson Musetti (1997) TLR 310; (CAT) Civil Application No. 138 of 2003, Consolidated Holding Corporation v. Rajani Industries (unreported); (CAT) Civil Application No. 12 of 2000, Dunhill Motors Ltd v. Tanzania Revenue Authority (unreported). The Court quoted with approval the above-quoted extract from Mussafs case and said ?

gThat statement on the practice of the Court which has now acquired the force of law was expressed by a single Judge of the Court but we endorse it and confirm that that is the current legal position in the country to which parties to an application for stay of execution must conform.h

         It is therefore now settled that attaching a Ruling to an application for stay of execution will not do.

         In the result, I sustain this preliminary objection and strike out the application with costs as incompetent. Having reached this conclusion, it is not necessary for me to consider and determine the first ground of complaint.


DATED at DAR ES SALAAM this 3rd day of May, 2006.

H.R. NSEKELA
JUSTICE OF APPEAL

         I certify that this is a true copy of the original.











( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR