Civil Reference No. 7 of 2004
The applicant, Commissioner General of the Tanzania Revenue Authority, sought enlargement of time from the Court of Appeal of Tanzania to appeal against a decision of the Tax Revenue Appeals Tribunal (Hatibu Senkoro, Vice Chairman) delivered on 13 September 2004 in Tax Revenue Appeals Tribunal Application No. 8 of 2004. The application for extension of time was supported by an affidavit sworn by Mr. Michael Muhamizi Lugaiya, Senior Principal Counsel for the applicant. It was noted that an earlier application, Civil Application No. 161 of 2004, concerning the same matter had been withdrawn. Before the substantive application could be heard, the respondent, Parastatal Pensions Fund, lodged a notice of preliminary objection under Rule 100 of the Court of Appeal Rules, 1979, raising three points: (i) that the Court had not been properly moved; (ii) alternatively, that in light of the earlier withdrawn application, the current application was irregular and bad in law; and (iii) alternatively, that the notice of motion was defective in form and substance.
(1) Whether the application was properly brought before the Court, i.e., whether the correct enabling provision of the Court of Appeal Rules, 1979 was cited to move the Court. (2) Whether the notice of motion was fatally defective for failing to state the grounds upon which the application was made, as required by Rule 45(1) and (2) and Form A of the First Schedule to the Rules.
For the respondent, Mr. Maro argued that the application had not properly moved the Court because it was brought under Rules 3(2), 45 and 46(1) instead of Rule 8, which he contended was the specific and correct provision governing applications of this nature. He submitted that citing the wrong provision rendered the application incompetent, relying on several unreported Court of Appeal decisions (Harish Ambaram Jina v Abdulrazak Jussa Suleiman; Abdulhamid Ramadhani Mjombo and 2 Others v Ali Salim Ali and 2 Others; Sunflag (T) Limited v Yerome Wambura and 4 Others; Alliance Insurance Corporation Ltd. and 9 Others v Commissioner of Insurance). He further argued, in the alternative, that the notice of motion was defective because it did not state the grounds of the application as required under Rule 45(1) and (2), and that the affidavit in support merely narrated events rather than setting out grounds. For the applicant, Mr. Lugaiya conceded the failure to cite Rule 8 but argued that Rule 3(2) was equally applicable because, he explained, he had not yet been supplied with a copy of the Tribunal's decision sought to be contested, making Rule 8 inapplicable at the time. On the third point, Mr. Lugaiya admitted no grounds were stated in the notice of motion but contended this omission was not fatal since the grounds could be found in the supporting affidavit.
The Court (Msoffe, J.A.) upheld the preliminary objection and struck out the application with costs. It held that Rule 8 was the specific provision applicable to an application of this nature, and there was no need to resort to Rule 3(2) when a specific rule existed to cover the application; accordingly, the Court had not been properly moved, rendering the application incompetent. Although this finding alone was sufficient to dispose of the matter, the Court proceeded, in the interests of justice, to address the third ground of objection. It held that Rule 45(1) mandatorily requires that grounds of an application be stated in the notice of motion, and Rule 45(2) requires the notice to substantially follow Form A in the First Schedule, which provides for stating such grounds. Citing its own recent decisions, the Court held that failure to state the grounds of the application is fatal and renders the application incompetent. It rejected the argument that grounds contained in the supporting affidavit could cure this defect, holding that the affidavit was merely a narration of events leading to the application and did not amount to the grounds contemplated under Rule 45(1) and (2). The application was therefore incompetent on both grounds and was struck out with costs.
The ruling reaffirms and applies established Court of Appeal of Tanzania jurisprudence on procedural competence of applications: (1) that where a specific rule (here, Rule 8) governs a particular type of application, resort to a general provision (Rule 3(2)) to move the Court is impermissible and renders the application incompetent for failure to properly move the Court; and (2) that stating the grounds of an application in the notice of motion, in substantial compliance with Form A of the First Schedule, is a mandatory requirement under Rule 45(1) and (2), and an affidavit narrating background facts cannot substitute for or cure the absence of such grounds. The decision underscores strict adherence to procedural rules in applications before the Court of Appeal and illustrates that even multiple, cumulative procedural defects can independently render an application incompetent, warranting it being struck out with costs.
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