Vodacom Tanzania Public Limited Company was involved in a tax dispute with the Commissioner General of the Tanzania Revenue Authority (TRA). The dispute had already gone through the statutory tax dispute-resolution mechanisms, including proceedings before the Tax Revenue Appeals Board and Tribunal, and ultimately an appeal to the Court of Appeal.
Following the tax proceedings, the Commissioner General issued an Agency Notice dated 17 July 2020 to National Bank of Commerce (NBC), requiring payment of TZS 2,945,816,570.87 from Vodacom's bank account. Vodacom contended that the amount recovered was substantially higher than the disputed tax liability, which it stated was TZS 1,708,990,922.63.
Vodacom therefore approached the High Court seeking:
Leave to apply for orders of certiorari and mandamus; and
An interim order restraining TRA from enforcing the Agency Notice pending determination of the intended judicial review proceedings. Vodacom Tanzania Public Ltd Co …
TRA raised preliminary objections, principally arguing that Vodacom had failed to exhaust the remedies available under the tax laws and that the application improperly combined separate applications in one Chamber Summons. Vodacom Tanzania Public Ltd Co …
The Court principally considered the following issues:
The central question was whether Vodacom could invoke the High Court's judicial-review jurisdiction through certiorari and mandamus, despite the existence of the statutory tax dispute-resolution mechanisms under the Tax Revenue Appeals Act and Tax Administration Act.
The Court had to determine whether these prayers could properly be brought together in one Chamber Summons when they arose under different legal provisions.
TRA also challenged the competence of the affidavit sworn by Vodacom's advocate, arguing that certain facts were not within the advocate's personal knowledge and that the source of the information had not been disclosed.
The Court accepted that the High Court has exclusive jurisdiction to issue prerogative orders such as certiorari and mandamus, but emphasized that this jurisdiction should ordinarily only be exercised after available statutory remedies have been exhausted.
The Court stated that the Tax Revenue Appeals Board and Tribunal provide the statutory mechanism for challenging tax decisions. Under the applicable legislation, a taxpayer dissatisfied with the Commissioner's decision could proceed through the statutory tax appeal hierarchy.
Importantly, the Court accepted Vodacom's argument that an Agency Notice itself is not a tax decision capable of being objected to in the ordinary tax objection process. However, this did not assist Vodacom because the underlying tax dispute had already passed through the tax appeal system.
The Court noted that Vodacom's appeal to the Court of Appeal had been struck out rather than dismissed. This distinction was significant. A striking-out order meant that there had not been a competent appeal finally determined on its merits. Consequently, Vodacom still had the opportunity to pursue the appeal afresh.
The Court therefore held that Vodacom had not exhausted its available tax remedies.
The Court warned that allowing Vodacom to bypass the tax appeal system and invoke judicial review would effectively permit forum shopping.
The Court distinguished cases where several prayers can properly be combined because they arise from the same law and are consequential upon each other.
It held that Vodacom's application combined:
an application for leave to institute judicial review; and
an application for interim orders,
but the two were founded on different legal provisions.
The Court therefore sustained this preliminary objection and held that the application was an omnibus application that was improperly constituted. Vodacom Tanzania Public Ltd Co …
Although the Court considered the third objection to have been improperly raised because there had been no prior notice of it, the Court nevertheless found that paragraphs 2, 16 and 17 of the supporting affidavit contained information that was hearsay.
In particular, the affidavit relied on information allegedly communicated to the advocate by Vodacom's banker concerning the Agency Notice. The Court held that where material information originates from another person, that person should ordinarily swear an affidavit where the information is relied upon as evidence.
The Court therefore expunged paragraphs 2, 16 and 17 from the supporting affidavit. Vodacom Tanzania Public Ltd Co …
The Court ultimately sustained the objections.
The application was dismissed with costs on the ground that Vodacom had failed to exhaust the available tax remedies.
The Court also held that the application was improperly constituted because it combined distinct applications arising under different laws and therefore was liable to be struck out on that ground.
The Court nevertheless observed that expunging paragraphs 2, 16 and 17 of the affidavit did not by itself destroy the entire application because sufficient material remained. Vodacom Tanzania Public Ltd Co …
The most important principle from the ruling is that a taxpayer should first exhaust the statutory tax dispute-resolution mechanisms before invoking the High Court's judicial-review jurisdiction.
The existence of the High Court's supervisory jurisdiction does not give a taxpayer a licence to bypass the specialized tax appellate system.
The Court made it clear that certiorari and mandamus should not be used as a "back door" appeal against decisions falling within the tax statutory framework.
The Court specifically warned that allowing such applications would create unnecessary forum shopping among taxpayers.
The ruling is particularly useful on the distinction between "striking out" and "dismissal."
A struck-out appeal is treated as having been incompetent or improperly before the appellate court; it is not necessarily a final determination of the substantive dispute. Therefore, where the law permits the party to institute the appeal afresh, the party may still be required to pursue that remedy before resorting to judicial review.
The Court did not hold that the High Court lacks jurisdiction to issue certiorari or mandamus in tax matters. Rather, it held that such jurisdiction should ordinarily be exercised after the taxpayer has exhausted the available statutory remedies.
The ruling recognizes an important countervailing principle: TRA's statutory powers are not beyond judicial supervision. The Court acknowledged that judicial review remains an important mechanism for controlling unlawful administrative action. However, the taxpayer must approach the Court through the legally appropriate route and after exhausting available remedies.
The case also demonstrates that procedural defects can independently defeat an application, particularly where prayers arise under different statutory regimes. Parties seeking judicial review must therefore carefully identify the enabling provisions and ensure that separate remedies are instituted in the appropriate form.
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