Civil Reference No. 7 of 2004
The applicant, Roshan Meghjee & Company Ltd, a tax payer, had been aggrieved by a decision of the Tax Revenue Appeals Tribunal which reversed an earlier decision of the Tax Revenue Appeals Board ordering the respondent (Commissioner General, Tanzania Revenue Authority) to refund Value Added Tax of TZs 59,345,168/= to the applicant. The applicant appealed to the Court of Appeal (Civil Appeal No. 49 of 2011), raising four grounds, the first three concerning interpretation of section 70 of the Value Added Tax Act, Cap 148 RE 2002 (dealing with the Commissioner-General's discretion to refund or remit VAT where incorrect or misleading advice was given by an officer), and the fourth concerning reimbursement of certain transport and storage costs. The Court of Appeal, in its judgment of 18 July 2011, dismissed the appeal, holding that the appeal was without founded basis and upholding the Tribunal's decision. The applicant, dissatisfied, brought this application under Rule 66(1) of the Court of Appeal Rules, 2009, seeking review of that judgment, supported by an affidavit of its counsel, Mr. Martin Matunda, alleging a manifest error on the face of the record resulting in a miscarriage of justice. The respondent, though duly served, did not appear at the hearing, and the Court proceeded ex parte under Rule 63(2).
Whether there was a manifest error on the face of the record in the Court of Appeal's judgment of 18 July 2011, within the meaning of Rule 66(1)(a) of the Court of Appeal Rules, 2009, justifying review of that judgment on the ground that the Court failed to properly consider the applicant's grounds of appeal founded on section 70 of the Value Added Tax Act, Cap 148 RE 2002, and instead wrongly based its decision on the common law doctrine of promissory estoppel.
The applicant, through counsel Mr. Martin Matunda, argued that the Court's 2011 judgment was flawed because, although the first three grounds of appeal were founded squarely on the interpretation of section 70 of the VAT Act (concerning the Commissioner-General's discretion to refund VAT where incorrect advice had been given by his office), the Court instead framed and decided the matter on the common law doctrine of promissory estoppel without ever referring to section 70 in its reasoning. Counsel contended this amounted to the Court disregarding the grounds of appeal actually pleaded and deciding the case on an extraneous basis, thereby dismissing the appeal without properly considering it, which constituted a manifest error on the face of the record resulting in a miscarriage of justice warranting review. It was undisputed that the respondent's office had initially given the applicant advice on VAT payable which was later withdrawn, and counsel urged that section 70 should have been construed in the applicant's favour given this fact. The respondent, though served, did not appear and advanced no arguments in opposition.
The Court of Appeal dismissed the application for review for want of merit. It held that, contrary to the applicant's contention, the 2011 judgment did properly address the first three grounds of appeal, which were all based on section 70 of the VAT Act, and expressly found that the applicant's reliance on section 70 (concerning the Commissioner-General's discretionary power) in effect amounted to setting up an estoppel against the operation of the VAT Act; hence the Court's discussion of promissory estoppel was a considered response to, not a disregard of, the pleaded grounds. The discretionary power under section 70, not being couched in imperative terms, could not be construed to bar the applicant from its constitutional obligation to pay tax. The Court found that the applicant was in truth attempting to have the Court reconsider and re-decide the grounds of appeal already determined, which falls outside the scope of Rule 66(1) and amounts to using review as a backdoor to re-argue the case as if exercising appellate jurisdiction. Citing Transport Equipment Ltd v Devram P. Valambhia, Chandrakant Joshubhai Patel v Republic, Transcontinental Company Equipment Ltd v Design Partnership Ltd, and Peter Ng'homango v Gerson K. Mwanga, the Court reiterated that review powers must be exercised sparingly, only in deserving cases, requiring proof that a wrong or error was actually committed, and not to substitute a different view in law or to re-litigate a lost case. Finding no manifest error, the application was dismissed with no order as to costs, given the respondent's non-appearance.
The ruling reaffirms the narrow and limited scope of the Court of Appeal's review jurisdiction under Rule 66(1) of the Court of Appeal Rules, 2009. It reiterates established precedent that review is an extraordinary remedy to be exercised sparingly, reserved for genuine manifest errors resulting in miscarriage of justice, and is not a mechanism for unsuccessful litigants to re-argue their case or invite the Court to substitute a different legal view, which would effectively convert review into a disguised appeal. The decision also illustrates that a court's engagement with a legal doctrine (here, promissory estoppel) in analysing a statutory provision relied upon by a party does not constitute disregard of that party's pleaded grounds, so long as the substance of the statutory argument is addressed. The case thus reinforces the public policy interest in finality of litigation and certainty of law as declared by the apex court.
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