Ace Distributors Ltd vs Commissioner General, Tanzania Revenue Authority (Civil Application 163 of 2018) [2018] TZCA 43 (27 June 2018)

The application, which was brought under Rules 96(6) and 4(2)(a) and (b)  of the Tanzania Court of Appeal Rules, 2009 (the  Rules), is supported by the affidavit of Sylivastus Sylivanus Mayenga, advocate.

At the hearing on 25/6/2018, the applicant was represented by Mr. Sylivanus Mayenga, learned counsel whereas the respondent, The Commissioner General (TRA), was represented by Mr. Harold Gugami, learned counsel. The respondent did not file an affidavit in reply and therefore, the application stood unopposed. In the circumstances, Mr. Mayenga urged the Court to grant the prayer on account of the reasons advanced in the notice of motion and the supporting affidavit.

Mr. Gugami did not resist the application. He stated that the respondent did not, from the beginning, object to the application in which the applicant was granted extension of time to file the present application.

From the record, the application arises from Civil Appeal No. 250 of 2017. In that appeal, the applicant appealed against the decision of the Tax Revenue Appeals Tribunal in VAT Appeal No. 13 of 2010. Having filed the said appeal in this  Court, it realized that the documents which are sought to be included in the record of the appeal were omitted from the record.

Under Rule 96(6) of the Rules, the applicant had the liberty of including the omitted documents in the record of the appeal within fourteen days from the date of filing the appeal. Within that period, an appellant does not require the leave of the  Court.  It is imperative from that provision that after expiry of the prescribed period of fourteen days, the documents can only be included after obtaining the leave of the Court. For this reason, the applicant applied for extension of time through Civil Application No. 40/20 of 2018. That application was granted on  23/4/2018, and consequently, the application at hand was filed.

Before we proceeded to determine the application, we found it apposite to consider the nature of the application as presented by the applicant. Firstly, as stated above, the applicant is seeking to be granted leave to file supplementary record consisting of the omitted documents. Secondly, in the title of the notice of motion and the affidavit, it is shown that the application is  "for leave to amend the Record and Memorandum of Appeal in an appeal against the Judgment and Decree of the Tax Revenue Appeals Tribunal at Dar es Salaam.

When Mr. Mayenga was asked to clarify on that mix-up, he conceded that, because what is sought is inclusion of the omitted documents, the process does not amount to amendment of the record. In our view, that is a correct position because under Rule 111 of the Rules which vests the Court with the powers of ordering amendment of documents, the amendment envisaged in that Rule involves the documents such as; a notice of appeal, memorandum  of  appeal  or  a notice of cross-appeal which are contained in an already filed record of appeal. The provision does not allow for introduction of the documents which were not in the record at the time of filing the appeal.

With regard to the issue whether inclusion of the omitted documents can be made by way of filing a supplementary record, the learned counsel for the applicant argued that it is proper to do so. He relied on the provisions under which the Court has been moved. On the basis of what we have earlier stated above, we agree that the Court has been properly moved under Rule  96(6)  of the  Rules.    However, since the documents which, by virtue of the provisions of Rule 96(1)  of the  Rules are essential to the appeal, the same cannot be filed through a supplementary record of appeal.

The position was clearly stated in the case of Haruna Mpangaos & 902 Others v. Tanzania Portland Cement Co. Ltd, Civil Appeal No. 10  of 2007 (unreported). In that case, the Court had the occasion of interpreting the provisions of Rules 89(1) and 92(1) of the Tanzania Court of Appeal Rules, 1979 (now Rules 96(1) and 99(1) of the Rules respectively). The court stated as follows:-

" ....a supplementary record of appeal presupposes the existence of a complete record of appeal lodged by an appellant.  Complete in the sense that it contains all the essential documents itemized under Rule 89(1). Under Rule 92(1) the use of the words  containing copies of any further documents or additional parts of documents which are, in his opinion required for the proper determination of the appeal' mean, in effect, that the supplementary record of appeal may be lodged for the purpose of making good deficiencies in the record of appeal not affecting the competence of the appeal.  A supplementary record of appeal should, therefore, add something to the otherwise complete record of appeal."

On the basis of the above stated position, inclusion of the omitted documents cannot be made through a supplementary record.  The same are to be lodged and served in accordance with the procedure of filing documents after institution of an appeal.

That having been said, we hereby grant the application.  The applicant is granted leave to include the omitted documents in the record of appeal.   It has to do so within 14 days from the date of delivery of this ruling.

Each party shall bear its own costs.

DATED at DODOMA this 27th day of June, 2018.

I.H. JUMA

CHIEF JUSTICE

A.G.MWARIJA

JUSTICE OF APPEAL

R.E. MZIRAY

JUSTICE OF APPEAL