Zambia Revenue Authority v Armcor Security Ltd (Appeal 72 of 2014) [2017] ZMSC 238 (19 January 2017)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 72/2014 SCZ/8/49/2014 BETWEEN ZAMBIA REVENUE AUTHORITY APPELLANT AND ARMCOR SECURITY LIMITED RESPONDENT Coram: Chibomba, Hamaundu and Kaoma, JJS. On 2nd June, 2015 and on 19th January, 2017 For the Appellant: Mrs. N. Katongo, Legal Officer, Zambia Revenue Authority. For the Respondent: Mr. M. M. Mundashi, SC and Mr. M. Chiteba both of Mulenga Mundashi and Kasonde Legal Practitioners. JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Vancouver (City) v British Columbia (Assessment Appeal Board) (1996) B. C. J. No. 1062. Natural Valley Limited v Zambia Revenue Authority - 2011/RAT/06/C&E. Mohammed Hussein v Zambia Revenue Authority - 1999/RAT/13. Buchie Investment Limited v Zambia Revenue Authority - 2001/RAT/25. Metcash Trading Limited v The Commissioner for the South African Revenue Service and the Minister of Finance - CCT 3/200. Mumana Pleasure Resort v Zambia Revenue Authority - 1999/RAT/24. Zamanita Limited v Zambia Revenue Authority - 2012/RAT/02/CE. Income Tax Officer v M. K. Mohammed Kunhi (1969) AIR 430. Arstogerasimos Vangelatos v Demetre Vangelatos Metro Investments Limited King Quality Meat Products Limited (2007) Z. R. 74. Zambia National Holdings Limited and United National Independence Party (UNIP) v the Attorney General (1993-1994) ZR 115. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No. 18 of 2016 (Unreported). J2 Legislation and other authorities referred to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. The Constitution of Zambia, Chapter 1 of the Laws of Zambia. The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. The Tax Appeals’ Tribunal Act, Chapter 345 of the Laws of Uganda. The Income Tax Act, Chapter 323 of the Laws of Zambia. The Value Added Tax Act, Chapter 331 of the Laws of Zambia. The Customs and Excise Act, Chapter 322 of the Laws of Zambia. The Revenue Appeals Tribunal Act, No. 11 of 1998. The Revenue Appeals Tribunal Regulations, Statutory Instrument No. 143 of 1998. Halsbury’s Laws of England, 4th Edition, Volume 44 (1); 3rd Edition, Volume 9; and 4th Edition, Volume 23. Black’s Law Dictionary, 8th Edition. The Appellant appeals against the Judgment of the High Court exercising its appellate jurisdiction against the decision of the Revenue Appeals Tribunal (RAT). In the Judgment appealed against, the learned High Court Judge held inter-alia that the RAT has jurisdiction to grant stays of execution and ordered that the ex-parte order of stay dated 18th February, 2013 granted by a single member of the RAT should remain in force pending the inter-partes hearing of the application for a stay by the requisite quorum of the Tribunal. The background to this Appeal is that the Respondent in this Appeal filed a Notice of Appeal before the RAT against the assessment by the Appellant under the Customs and Excise Act, the Value Added Tax Act (VAT) and the Income Tax Act totaling K77,200,818.72. The Respondent on the same day also applied for an order for stay of J3 execution of the assessment pending hearing and determination of the appeal by the RAT. A single member of the RAT granted an ex-parte order staying execution of the assessment. The Appellant filed an Affidavit in Opposition of the application for stay of execution. At the inter-partes hearing, the Appellant raised a preliminary issue on a point of law challenging the jurisdiction of the RAT to grant an order for stay of execution and whether such an application can be heard by a single • member of the RAT. In its Ruling dated 7th March, 2013 the RAT dismissed the point of law and confirmed the order of stay of execution granted ex-parte by a single member of the RAT. Dissatisfied with the said Ruling, the Appellant appealed to the High Court, which upon hearing both parties, in the Ruling dated 30th January, 2014 the subject of this Appeal, the learned appellate Judge ruled that it was a misdirection to rule that a single member of the RAT £ had jurisdiction to hear and determine an inter-partes application for stay of execution, as a single member did not have jurisdiction to hear and determine an inter-partes application for stay of execution. As regards the second issue as to whether the RAT has jurisdiction to grant an order for stay of execution in the absence of express or implied power to grant such an order, the appellate Judge’s view was that the RAT had powers conferred on it by the Revenue Appeals Tribunal Act, provided that such powers are exercised by J4 taking into account the merits of the individual applicant. The learned appellate Judge relied on Section 25 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia which provides that:- “Where any written law confers power on any person to do or enforce the doing of an act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.” She, therefore, dismissed the second ground of appeal and ordered that the ex-parte order of stay dated 18th February, 2013 granted by the RAT should remain in force until the application was determined inter-partes by the requisite quorum of the Tribunal and referred the matter back to the Tribunal. Dissatisfied with the decision by the learned appellate Judge, the Appellant has appealed to the Supreme Court advancing two Grounds of Appeal as follows: - “1. The Court below erred in law and in fact when it held that the Revenue Appeals Tribunal has jurisdiction to grant stays of execution. 2. The Court below erred in law and in fact when, after finding that a single member of the Revenue Appeals Tribunal has no jurisdiction to hear and determine an inter-partes application for stay of execution, it proceeded to order that the ex-parte order of stay dated 18th February, 2013 remain in force until the application was determined inter-partes by the requisite constituted quorum of the Tribunal.” J5 Before we proceed to sum up the arguments in this Appeal, we wish to observe that although both parties have made references to and/or quoted from an array of unreported decisions of the Tribunal and decisions of the courts as well as legislation from other jurisdictions, copies of these authorities were not availed to the Court thereby denying this Court the opportunity to verify these materials cited and relied upon. This trend by lawyers and litigants to say the least, is one that we would not like to see again. In support of this Appeal, the learned Counsel for the Appellant, Ms. Katongo, relied on the Appellant’s Heads of Argument filed. Counsel began by giving a background of this case which we believe we have summed up above. In arguing Ground one of this appeal which criticized the learned appellate Judge’s holding that the RAT has jurisdiction to grant stays of execution, Counsel submitted that the RAT had no such jurisdiction express or implied. That as a creature of the RAT Act, No. 11 of 1998, the RAT performs its mandate according to the RAT Regulations, Statutory Instrument No. 143 of 1998. Hence, it can only exercise the powers that are expressly conferred on it by the enabling legislation. If it was the intention of the legislature for the RAT to have certain powers, such powers would have been expressly set out in the enabling J6 legislation. As an example, reference was made to the powers of the RAT to hear appeals. It was argued that this is so because its enabling legislation expressly provides for such power. To buttress this argument, Counsel cited the case of Vancouver (City) v British Columbia (Assessment Appeal Board)1 in which the issue was whether the Assessment Appeal Board had power to hear evidence in camera. In support of the answer that it did not, the court referred to a number of other statutes in which the legislature had granted such power explicitly. The court put it thus: - “In many statutes where the legislature has seen fit to permit certain boards to hold proceedings in camera, it has expressly conferred the power in the enabling Act. See for example, the Commodity Contract Act. R. S. B. C. 1979, c. 56, S. 4 (8): the Employee Investment Act, S. B. C. 1989, c. 24, s. 34.1 (e); and the Securities Act, S. B. C. 1985. It has not done so in the case of the Assessment Act. Given the absence of express provision for in camera hearings in the Assessment Act, and the public nature of the assessment process, I find it impossible to say that by necessary implication the Board must have the jurisdiction to conduct a portion of its hearings in camera.” Counsel pointed out that the court in the above cited case, refused to read any implied power for the Tribunal to do an act which was not expressly provided for in the enabling legislation. It was contended that had the legislature wanted the RAT in the case in casu to have the power to grant stays of execution, it would have expressly provided for such power. In support of this argument, Counsel referred to Section 28 J7 (1) of the Tax Appeals Tribunal, Chapter 345 of the Laws of Uganda which expressly provides that the Ugandan Tax Appeals Tribunal has power to grant stays of execution. Subsection (1) provides as follows: - “(1) Where an application for review of a taxation decision has been lodged with a tribunal or an appeal against a decision of a tribunal has been lodged with the High Court, the reviewing body may make an order staying or otherwise affecting the operation or implementation of the decision under review or appeal, or part of the decision, as the reviewing body considers appropriate for the purposes of securing the effectiveness of the proceeding and determination of the application or appeal.” Counsel also referred to Halsbury’s Laws of England, 4th edition, Volume 44 (1) at page 805, paragraph 1341 where the learned authors state that: - “A power to do something extends only to that thing; so a purported exercise of the power that extends to a different thing is to that extent not an exercise of the power at all and in so far as it purports to depend on the power, it is void as being ultra vires.” It was argued that since the RAT is not a court but an administrative tribunal, it has no inherent jurisdiction and that any orders it grants must be stated in the enabling legislation. Reference was made to Article 94 of the Constitution of Zambia, Chapter 1 of the Laws of Zambia to buttress the argument that only courts have inherent jurisdiction which is derived from the Constitution. Counsel submitted that the High Court has unlimited jurisdiction in Zambia while administrative agencies have no such jurisdiction and that everything J8 that these agencies do must be specifically mandated by an enabling statute and as such, the RAT being an administrative agency established by legislation, cannot exercise power that it does not have under the enabling legislation. . Counsel submitted that Section 25 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia cannot be used to conclude that the RAT has implied power to grant stays of 9 execution. Further that Section 25 of Chapter 2 poses difficulties in construing it as it clearly provides that where any written law confers a power on any person to do or enforce the doing an act, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing. Counsel argued that such power cannot be implied where a statute does not confer a power to do an act. And that the Appellant’s argument 9 in this respect is that granting a stay of execution where there is no such power was ultra vires the enabling legislation. Reference was also made to Halsbury’s Laws of England, 3rd edition, Volume 9, page 581, paragraph 1352 which provides that no tribunal by a misinterpretation of the law which gives it jurisdiction can purport to exercise a greater jurisdiction which it does not in fact possess. It was pointed out that the fact that the RAT Act and Regulations do not expressly provide for power to grant stays of execution entails J9 that the RAT has no jurisdiction to do so. And that in the case of Natural Valley Limited v Zambia Revenue Authority2, the RAT pronounced itself on situations where its enabling legislation did not expressly provide it with certain powers. In that case it held that it did not have authority to allow a process that is not provided for in the Act as doing so would be ultra vires the Act and that the RAT refused and rightly so, to grant Natural Valley Limited a default judgment on ground that the RAT Regulations of 1998 did not provide for the process of default judgment. That the RAT observed in that case that if it was the intention of the legislature to allow for that procedure, there would have been a specific regulation to that effect. Reference was also made to the case of Mohammed Hussein v Zambia Revenue Authority3, in which the RAT declined to issue a writ of fieri facias on ground that the enabling statute did not give it jurisdiction to issue a fifa. The question in that case was: if the RAT, whilst seized with an appeal, has inherent, implied and ancillary power to grant stays against recovery of disputed demanded tax, why shouldn’t it have inherent, implied and ancillary powers to issue writs for enforcement of its rulings? According to Counsel, the answer is simply that the RAT cannot issue writs to enforce its rulings in the same manner it does not have the power to grant stays of execution because its enabling legislation makes no such provision. J10 Counsel also cited the case of Buchie Investment Limited v Zambia Revenue Authority4, in which the RAT dealt with the question whether or not it had jurisdiction to grant a stay of execution. The Chairman, in his Ruling, put it as follows: - “When I scrutinized the documents in chambers, I declined to sign the ex-parte order to stay enforcement and ordered an impromptu inter- partes hearing for the appellants to address the Tribunal on whether the stay of executions can be granted... After the appellant failed to present any legal authorities on whether this Tribunal could grant the relief sought, I promptly dismissed the application with reasons to be given in a written ruling later. I now give the reasons ... As we stated in Mohammed Hussein v Zambia Revenue Authority (199/RAT/13), the jurisdiction of the Tribunal is to be found in the enabling statute. The enabling statute is clear and unambiguous ... the Tribunal cannot grant a stay pending the hearing of an issue...” It was submitted that the intention of the legislature was not to give the RAT the power to grant stays of execution and that this view is supported by the provisions of Section 77 (4) and (6) of the Income Tax Act, Chapter 323 of the Laws of Zambia. Section 77 (4) and (6) of Chapter 323 provide, respectively, as follows: - “(4) Any tax payable by any person under an assessment made under subsection (3) of Section sixty three or Section sixty-four shall be due and payable on the date notice of the assessment is given to the person under Section sixty-five. (6) Subsection (4) shall have effect notwithstanding that the person assessed objects to or appeals against that assessment.” It was argued that the legislature could not have intended to give the RAT power to grant stays of execution when the Income Tax Act in no uncertain terms, provides that the tax payable under an assessment Jll shall be due and payable notwithstanding that a taxpayer has objected against the assessment. Further, that the Income Tax Act, the Customs and Excise Act and the Value Added Tax provide for elaborate refund procedures where tax is over paid or paid in error. To further illustrate this point, Counsel referred to Halsbury’s Laws of England, 4th edition, Volume 23, page 1500, paragraph 1672 which states that: - “Except as otherwise provided, where specified appeals have been made to the General Commissioners or the Special Commissioners, the tax charged by the assessment is due and payable as if there had been no appeal.” Counsel also referred to Section 77 (6) of the Income Tax Act, Cap 323, which she submitted, implies that the tax payer should ‘pay now and argue later’. To buttress the above argument, Counsel cited the case of Metcash Trading Limited v The Commissioner for the 0 South African Revenue Service and the Minister of Finance5, in which the Constitutional Court of South Africa upheld the “pay now, argue later” provision in the Value Added Tax Act, which obliges taxpayers to pay the assessed amount notwithstanding the entry of an appeal. In that case, a concern was raised on the constitutional validity of Section 36 (1) and (2) (a) and Section 40 (5) of the Value Added Tax Act. Section 36 (1) of the Act provides that upon assessment by the South African Revenue Service Commissioner, and notwithstanding the J12 noting of “an appeal”, a taxpayer is obliged to pay the assessed Value Added Tax (VAT) plus consequential imposts there and then, possible adjustment and refunds being left for dispute and determination later, it was held in that case that: - “Neither the noting of the statutory “appeal” to the Special Court (or the “Board) nor the noting of any subsequent appeal in itself suspends the vendor’s obligation to pay according to the tenor of the assessment and accompanying imposts. The first part of the section is simply not concerned with anything other than the non-suspension - notwithstanding demur-of the obligation to pay the assessed VAT and consequential imposts chargeable under the Act. It follows that none of the grounds for contending that Section 36 (1) of the Act falls foul of the constitutionally protected right of access to the courts can be supported.” It was further submitted that in view of the provisions of the Income Tax Act, the provisions of Section 25 of the Interpretation and General Provisions Act cannot be relied upon to justify the position that the RAT had inherent, implied and ancillary powers to grant a stay of execution. And that tax is due and payable when the assessment is done and there cannot be any stay to prevent the collection of such tax. And that this is only logical in view of public policy consideration since the revenue collected by the Appellant is on behalf of the State. And hence, the reason why tax statutes have elaborate refund provisions in the event that the amounts assessed are in excess of what is actually due. Thus, that the RAT has no jurisdiction, express J13 or implied, to grant an order of stay of execution. And that on this basis, Ground one of the Appeal should be upheld. In support of Ground two which attacks the learned appellate Judge for ordering that the ex-parte order of stay dated 18th February, 2013 should remain in force until the application is determined inter- partes by the requisite constituted quorum of the RAT after finding that a single member of the RAT had no jurisdiction to hear and determine an inter-partes application for stay of execution, it was submitted, inter alia, that the court below misdirected itself by so holding. To illustrate this argument, Counsel repeated the contention that during the application before the single member of the RAT where the ex-parte order staying execution was confirmed the parties raised a preliminary objection whether or not a quorum had been constituted. That the court below, in reviewing whether or not a single member of the RAT had jurisdiction to hear and determine an inter-partes application for a stay of execution held as follows: - “I am of the considered view that a single member of the Revenue Appeals Tribunal has no jurisdiction to hear and determine an inter- parte application for a stay of execution. Regulation A of the Revenue Appeals Tribunal clearly provides that the quorum of the tribunal shall be three... The cardinal issue is that the quorum for any meeting must be comprised of three members of RAT. This is a statutory requirement. J14 It is, therefore, my view that the Honourable member contravened the provisions of the regulations because there was no quorum constituted at the inter-parte hearing of the application. I am further of the view that regardless of whether the hearing is in respect of inter-parte interlocutory application or main matter the quorum must be formed. It is, therefore, my holding that the Honourable Member of the Tribunal misdirected herself in law when she ruled that a single Member of the Revenue Appeals Tribunal has jurisdiction to hear and determine an inter-partes application for a stay of execution.” It was contended that the court below was on firm ground when it 9 found that the single member of the RAT contravened the provisions of the RAT Regulations. However, that the court below went on to hold as follows: - “For the avoidance of doubt the ex-parte Order of stay dated 18th February, 2013 granted by the Revenue Appeals Tribunal remains in force until the application is determined inter-partes by the requisite constituted quorum of the Tribunal.” The Contention was that there was no basis for the court below to reinstate the ex-parte order after finding that a single member of the RAT did not have jurisdiction to hear and determine an inter-partes application for stay of execution and after also finding that a quorum was not properly constituted and hence the order should have been set aside. Therefore, that the court below erred by ordering the ex-parte order of stay granted by the single member of the RAT Regulations to remain in force when it was granted without the requisite quorum being formed. In this respect, we were referred to Regulation 4 of the RAT J15 which provides that the quorum of the RAT is comprised of three members. Counsel argued that the use of the word “shall” in Regulation 4 means it is mandatory. Counsel referred to Black’s Law Dictionary, 8th edition which defines the words “shall”, “preside” and “meeting” respectively, as follows: “Has a duty to: more broadly, is required to ... This is the mandatory sense that drafters typically intend and that courts typically uphold.” “To exercise management or control.” “The gathering of people to discuss or act on matters in which they have a common interest...” Counsel submitted that the requirement for a quorum must be constituted as stipulated by Regulation 4. Therefore, the ex-parte and the inter-parte orders staying execution having been granted by a single member of the RAT sitting alone contravened the RAT Regulations and the said orders were void and as such, the court below erred in law and in fact when it ordered the order staying execution granted on 18th February, 2013 to remain in force until the application was determined inte-partes by the requisite constituted quorum of the RAT. Further that since the ex-parte order of stay was overtaken by the inter-partes order and since the inter-partes order was granted in the absence of the requisite quorum, the court below ought to have set aside the order and J16 it should not have ordered the ex-parte order staying execution dated 18th February, 2013 to remain in force. We were accordingly urged to uphold the two Grounds of Appeal with costs to the Appellant. The learned Counsel for the Respondent, Mr. Mundashi, SC, and Mr. Chiteba also relied on the Respondent’s Heads of Argument. Counsel began by giving the history of this Appeal which we have already given above. In response to Ground one, Counsel began by restating the Appellant’s argument in support of this ground as follows: - “It has been argued that the Court below erred in law and fact when it held that the Revenue Appeals Tribunal has jurisdiction to grant stays of execution. In so doing, the Appellants have argued at length that the Revenue Appeals Tribunal (“RAT”) has no jurisdiction, express or implied, to grant an order of stay of execution. Further that the RAT being a creation of statute can only exercise the powers which are expressly set out in the enabling legislature. And finally that if indeed it was the intention of the legislature for the RAT to have certain powers, such power would have been expressly set out in the enabling legislation.” Counsel pointed out that it is imperative for the determination of this Appeal by this Court that there should be a holistic look at the Statute and relevant laws in respect of the RAT. He went on to point out that the RAT was established pursuant to the RAT Act No. 11 of 1998. He then recast the preamble to the RAT Act as follows: - J17 “An Act to establish the Revenue Appeals Tribunal to hear appeals under the Customs and Excise Act, the Income Tax and the Value Added Tax Act: to repeal the provisions relating to appeals under the Customs and Excise Act, the Income Tax Act and the Value Added Tax Act, and to provide for matters connected with or incidental to the foregoing.” He also cited the case of Mumana Pleasure Resort v Zambia Revenue Authority6 which according to State Counsel, sheds more light on the role of the RAT where the Tribunal held as follows: - ■ “The Revenue Appeals Tribunal Act No. 11 of 1998 empowers the Tribunal to stop enforcement or collection of tax pending the outcome of an appeal. Of course, this is upon an appropriate application by the Appellant.” Counsel pointed out that in the current case, following an appropriate application by the Respondent, the RAT in exercising its discretion granted an interim order of stay of execution pending appeal. It was submitted that even though the Act does not explicitly provide for the granting of stays of execution, granting stays is incidental to the functions of the Tribunal as provided in the preamble and in the above cited case. Hence, the Tribunal had power to grant a stay. The case of Zamanita Limited v Zambia Revenue Authority7 was also cited in which the Tribunal stated that: - “There is no doubt that the Revenue Appeals Tribunal has within its remit to do what is necessary to achieve the objective of the Revenue Appeals Tribunal, which is to provide a forum where grievances on tax matters can be arbitrated upon as provided for in the Tax Legislations. Accordingly, we hold that the Revenue Appeals Tribunal has the right to do all subordinate acts incidental to and necessary for the execution of J18 the Revenue Appeals Tribunal, Act No. 11 of 1998 like granting stay while seized of an appeal...” Counsel submitted that the Tribunal is, therefore, empowered to exercise its discretion in appropriate cases to grant a stay of execution. To buttress this argument, the case of Income Tax Officer v M. K. Mohammed Kunhi8 was cited in which the court in India held that the Income Tax Appellate Tribunal had the power to order the stay of recovery of penalties as an incidental and ancillary power to its appellate jurisdiction. In that case, both the enabling statutes, the Indian Income Tax Act of 1961 and the Income Tax Appellate Tribunal Rules, 1963, did not grant express power to the Income Tax Appellate Tribunal to grant an order of stay of execution and in affirming the jurisdiction of the Income Tax Appellate Tribunal to grant stay of execution, the Indian Supreme Court put it thus: - “An express grant of statutory power carried with it by necessary implication the authority to use all reasonable means to make such grant effective. The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective.” It was pointed out that the position taken by the Indian Supreme Court has statutory backing in our jurisdiction as Section 25 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia provides that where any written law confers a power on any person to do or enforce the doing of an act or thing, all such powers J19 shall be understood to be also as are reasonably necessary to enable the person to do or enforce the doing of the act or thing. In response to the Appellant’s argument that the effect of Section 25 of the Interpretation Act is in respect of instances where any written law confers a power to do or enforce the doing of an Act and the argument that the above recast section does not apply to the matter in casu as the Act or the Regulations do not confer the RAT with a power to grant a stay, it was submitted that the Appellant’s interpretation is clearly misleading and limits the application to only half of the provisions of Section 25. That Section 25 is clear and unambiguous as in its entirety, the Section is simply that where any written law confers a power on any person to do or enforce the doing of an act or thing, such power shall be understood to include all such powers as are reasonably necessary to enable the person to do or enforce the doing of the act or thing. Counsel argued that in the current case, Section 3 of the RAT Act, gives the Tribunal the authority to hear an Appeal on the assessments under the Customs and Excise Act, the Value Added Tax Act and the Income Tax Act. And that the statutory power carries with it powers to ensure that the exercise of its power is effective. Therefore, the legislature could not have intended the Tribunal not to have ancillary and incidental powers to give effect to its mandate under the Act. And that in the current case, the tax that was assessed and J20 demanded to be paid is a colossal sum of K77,200,818,720.00 (K77,200,818.70 after rebasing) and that the Respondent’s evidence in the court below, which was not assailed was that the immediate demand for the enforcement and payment of this figure would have catastrophic consequences on the Appellant Company which has been in existence for over 20 years during which period the company has met all its statutory obligations. And that quite clearly and evident from the foregoing, it was never the intention of the legislature that the Tribunal should give meaningless rulings on appeal as that would amount to denying litigants interim relief in form of stays of enforcement or execution to the extent that when the appeal is finally determined, the Tribunal would find that there was no basis for the assessment of the tax. It was pointed out that it is common cause that the Tribunal, in exercising its statutory functions, grants stays of execution and has been exercising this power for the past 14 years of its existence and that this is in line with the statutory powers conferred on the Tribunal to regulate its own conduct. And that if the position advanced by the Appellant was to be accepted, this would render the appeal before the Tribunal nugatory and further make the Tribunal ineffective in discharging its statutory functions. J21 Counsel argued that it is trite law that a stay of execution is a discretionary order as per case of Arstogerasimos Vangelatos v Demetre Vangelatos Metro Investments Limited King Quality Meat Products Limited9 which reaffirmed this position. That the Supreme Court categorically stated in that case that the effect of a stay of proceedings is actually to suspend the rights the Appellant may have in the proceedings in the court below pending the determination of the Appeal in order to avoid a situation where the decision on appeal is rendered nugatory and merely academic. Therefore, the determination whether or not to grant an order of stay is in the discretion of the Tribunal once it has considered the circumstances of the particular case. And that it is certainly erroneous to state that no such power exists as far as the Tribunal is concerned. In response to the authorities cited by the Appellant for the proposition that the RAT can only deal with matters that are specifically set out in the enabling statutes, Counsel referred us to the case of Buchie Investment Limited v Zambia Revenue Authority4 in which the Chairman of the Tribunal gave reasons for refusing to grant the stay sought. He put it as follows: - «... I now give reasons ... As we stated in Mohammed Hussein v Zambia Revenue Authority 1999/RAT/13; the jurisdiction of the Tribunal is to be found in the enabling statute. The enabling statute is clear and unambiguous. We have no jurisdiction to inquire in the conduct of the Commissioner-General in the way he exercises the power to detain or J22 seize items under the provisions of the Customs and Excise Act. It follows therefore that the Tribunal cannot grant a stay pending the hearing of an issue on which it has no jurisdiction to hear.” Counsel pointed out that the reasoning by the Chairman to refuse to grant the stay as prayed was not because he did not have jurisdiction to do so, but rather that the Tribunal cannot grant a stay pending the hearing of an issue which it has no jurisdiction to hear. And that the facts of this case on the other hand, fall squarely in the Tribunal’s jurisdiction and as a result, the Tribunal, having the jurisdiction to hear this matter, was entitled to grant a stay pending hearing. In response to the case of Vancouver (City) v British Columbia (Assessment Appeal Board)1, cited by the Appellant, Counsel pointed out that the public nature of the assessment process in that case clearly made it impossible to hold the proceedings in camera. And that the issue in that case was very distinct from that in the matter in casu where the RAT was clearly exercising ancillary and incidental powers so as to give effect to its mandate under the Act. Similarly, neither in the case of Natural Valley Limited v Zambia Revenue Authority2 nor in Mohammed Hussein v Zambia Revenue Authority3 was it suggested that in settling disputes, the Tribunal cannot give ancillary orders and or interim reliefs so as to give effect to its final orders. Therefore, it cannot be suggested that the power to give interim reliefs is the exclusive preserve of the High Court of Judicature as there is no legislation or J23 authority to that effect. And that the Tribunal in this case was not purporting to do what it is excluded to do by law nor that which was in the exclusive preserve of the High Court. And that if the Tribunal was to entertain an application, as a main matter, not an interim application pending determination of a tax assessment appeal for an order for loss of business and damages against the Appellant on account of a wrongful assessment, then that would be outside its jurisdiction and an interim order pending the hearing of that matter would obviously be ultra vires. And that the Respondent’s position is that none of the authorities cited by the Appellant in its Heads of Argument lay down any general principle that the Tribunal was not empowered to grant orders of stay of execution. In response to the submission by the Appellant relating to Section 77 of the Income Tax Act that the Tribunal does not have the jurisdiction to grant a stay of execution, Counsel for the Respondent’s argument was that the effect of Section 77 (4) and (6) and particularly subsection (6) is that an objection or an appeal does not operate as a stay of an assessment under the Income Tax Act. And that the two subsections do not however, preclude an affected party from seeking a stay from the Tribunal and neither does it preclude the Tribunal from granting a stay. And that the effect of Section 77 (6) is the same as that of Rule 51 of the Supreme Court Rules which provides that an appeal J24 before the Supreme Court does not operate as a stay pending an appeal. Therefore, that despite the provisions of Section 77 of the Income Tax Act, the RAT has the power to grant a stay of execution where the circumstances of a particular case warrant it. And that in the current case, the Respondent submits that the assessment by the Appellant was arbitrary and that despite efforts to obtain detailed workings on which the assessment was based, the Appellant refused to provide such details. And that the record shows that Counsel for the Appellant was specifically asked by the Tribunal whether the detailed breakdown of the assessment had been provided to the Respondent and that she conceded that it hadn’t. Counsel then went on to quote what went on between the Chairperson of the Tribunal and Counsel for the Appellant as follows: - “Chairperson: Just there 1 am asking in terms of the facts from your Instructions, the Appellant is saying we made efforts to get an understanding how this assessment came out (sic) how it accumulated to this amount. Is it your position that you gave them a breakdown? Because in the Affidavit it is not there. Goramota: Without falling into the trap of giving evidence at the bar your honour, the Respondent actually engaged the Appellant several times to get documents from their side which documents were never forthcoming. Chairperson: So it is not in the - so you admit that has not been addressed? Goramota: Pardon. Chairperson: It is not in the Affidavit? J 25 Goramota: No, it is not in the Affidavit.” And that on the basis of the above, the Chairperson of the Tribunal decided as follows: - “My granting the stay until the disposal of the appeal is solely on the basis that the Respondent have not shown on record that the assessment provided sufficient details for the Appellant to even react to it, and that efforts to get an understanding have failed.” Based on the above quotations, Counsel submitted that the court below was therefore on firm ground when it held that the RAT had jurisdiction to grant stays of execution. In response to Ground two of this Appeal, it was submitted that the court below was on firm ground when it proceeded to order that the order for stay of execution dated 18th February, 2013 should remain in force until the application was determined inter-partes by the requisite quorum of the Tribunal despite having found that a single member of the RAT had no jurisdiction to hear and determine an inter-partes application for stay of execution. State Counsel drew our attention to the submissions at page 18 of the Supplementary Record of Appeal from which Counsel submitted, shows that it was argued by the Respondent in the alternative that should the court below have taken the view that the Tribunal was not properly constituted to hear the application inter- partes, then it should order that the ex-parte order of stay dated 18th February, 2013 remains in force pending determination of the inter- J 26 partes application by the RAT. That to that extent, the single member of the Tribunal has ancillary power to grant a stay of execution subject to confirmation by the full Tribunal and it was well within the learned Judge’s discretion to order that the stay of execution order remains in force until the application was determined inter-partes by the requisite quorum of the Tribunal. And that on the basis of the foregoing, the second Ground of Appeal has no merit and it should be dismissed with costs. We have seriously considered this Appeal together with the Grounds of Appeal, the Heads of Argument filed on behalf of the respective parties and the authorities cited. We have also considered the judgment by the learned Judge in the court below. Ground one raises the central question whether, the RAT has jurisdiction to grant stays of execution pending disposal of an appeal following an assessment of tax payable by an individual or an entity. The gist of Ms. Katongo’s arguments in support of Ground one is that the RAT being a creature of the RAT Act, No. 11 of 1998, can only exercise the powers that are expressly conferred upon it by the RAT Regulations, Statutory Instrument No. 143 of 1998. Therefore, since the enabling legislation does not contain any provision giving the RAT power to grant stays of execution, the RAT has no express or implied J27 jurisdiction to grant stays. She further submitted that had it been the intention of the legislators to clothe the RAT with power to grant stays, express provision would have been made under the enabling legislation to give the RAT such power. The kernel of Mr. Mundashi, S. C.,’s arguments in response to Ground one is that although the RAT Act does not explicitly provide for the granting of stays by the RAT, the granting of stays is incidental to the functions of the RAT as the statutory authority of the RAT to hear appeals against tax assessments carries with it powers to ensure that the exercise of its power is effective and that appeals before it are not rendered nugatory. Therefore, the RAT is empowered to exercise its discretion to grant stays in appropriate cases. And that it could not have been the intention of the Legislature not to give the RAT ancillary and incidental powers to give effect to its mandate under the Act. We have considered the above arguments. As regards the powers, organisation, administration and procedure of the RAT, Section 4 (8) of the RAT Act provides as follows:- “4 ... (8) The Minister may, by regulation- fa) regulate the organisation, administration and procedure of the Tribunal; and (b) empower the Tribunal to summon and compel the attendance of witnesses, to require the production of J28 documents, to award costs and to do and require all such acts and things as may be necessary for the performance of the Tribunal’s functions under this Act.” In this regard, the Revenue Appeals Tribunal Regulations, Statutory Instrument No. 143 of 1998, contains the regulations relating to the exercise of the powers of the RAT. We wish to state from the outset that the RAT Act as well as the RAT Regulations contain very elaborate provisions relating to the functions, powers and procedure of the RAT. However, perusal of the above two pieces of legislation has revealed that there is no specific or express provision under either the Act itself or the Regulations that give the RAT power to grant stays of execution pending determination of an appeal before it. The question therefore is, does the RAT have implied jurisdiction or power to grant stays of execution pending appeal? In other words, can the RAT be said to have jurisdiction to grant stays of execution pending appeal in the absence of express provision under both the RAT Act and the RAT Regulations clothing it with such jurisdiction/power? In answering the question posed above, it is imperative to first define what jurisdiction is. In the case of Zambia National Holdings Limited and United National Independence Party (UNIP) v The J29 Attorney General,10 the term ‘jurisdiction’ was defined in the following terms:- “The term "jurisdiction" should first be understood. In the one sense, it is the authority which a court has to decide matters that are litigated before it; in another sense, it is the authority which a court has to take cognizance of matters presented in a formal way for its decision. The limits of authority of each of the courts in Zambia are stated in the appropriate legislation. Such limits may relate to the kind and nature of the actions and matters of which the particular court has cognizance or to the area over which the jurisdiction extends, or both.” In the current case, the learned appellate Judge was of the view that although the RAT Act does not explicitly provide for the granting of stays of execution, the power to grant stays is incidental and ancillary to the RAT’s appellate jurisdiction. In this regard, the learned Judge referred to the long title of the RAT Act which provides as follows:- “An Act to establish the Revenue Appeals Tribunal to hear appeals under the Customs and Excise Act, the Income Tax Act and the Value Added Tax Act ... and to provide for matters connected with and incidental to the foregoing. The learned Judge also relied on Section 25 of the Interpretation and General Provisions Act, Cap 2 of the Laws of Zambia which provides that:- “Where any written law confers a power on any person to do or enforce the doing of an act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.” From the provisions of the RAT Act, it is clear that the RAT was established to carry out specific functions which are clearly spelt out by J30 the provisions of the Act. In the exercise of its functions, the RAT is guided by the provisions in the Regulations contained in Statutory Instrument No. 11 of 1998 which also provides, inter alia, for specific powers of the RAT. It is, therefore, our firm view that in the absence of express provision under both the RAT Act and the RAT Regulations that specifically vests the RAT with power to grant a stay of execution pending appeal, the RAT cannot assume jurisdiction to grant a stay pending appeal as such power is not provided for under the enabling legislation. Allowing the RAT to do so would amount to sanctioning the RAT to clothe itself with power/jurisdiction which the Legislature did not give it. In other words, the RAT cannot be said to exercise jurisdiction which it has not been clothed with by the law under which it operates and was established. It is also our firm view that had that been the intention of the Legislature to empower the RAT to grant stays pending appeal, such power would have been expressly provided for under the RAT Act or indeed the RAT Regulations. Therefore, in the absence of express provision granting such power, the RAT has no jurisdiction or power to grant a stay of execution pending determination of an appeal before it. For the reasons given above, it was therefore a misdirection for the learned appellate Judge to have relied on the provisions of Section 25 of * J31 the Interpretation and General Provisions Act to come to the conclusion that the RAT had incidental and ancillary power in exercising its appellate jurisdiction to grant stays of execution pending disposal of an appeal before it. This is so because Section 25 of the Interpretation and General Provisions Act cannot be construed to extend the powers/ jurisdiction of the RAT to include powers that the RAT has not been expressly vested with by the enabling legislation under which the power to grant a stay pending appeal is said to have been exercised by the RAT in the current case. As regards the argument by Counsel for the Appellant that Section 77 (4) and (6) of the Income Tax Act, Chapter 323 of the Laws of Zambia supports the appellant’s position that the Legislature did not intend to give the RAT power to grant stays of execution and the response by the learned Counsel for the Respondent that although the F effect of Section 77 in particular subsection (6) is that an appeal does not operate as a stay of the assessed tax under the Act, the RAT has the power to grant stays where the circumstances of a particular case so demand; it is imperative to recast the provisions of the said Section 77 which read as follows:- “77. ... (4) Any tax payable by any person under an assessment made under subsection (3) of section sixty-three or J32 section sixty-four shall be due and payable on the date notice of the assessment is given to the person under section sixty-five. (6) Subsection (4) shall have effect notwithstanding that the person assessed objects to or appeals against that assessment.” From the above, it is clear that a tax payer has an obligation to pay the tax assessed on the date indicated in the notice of assessment. It is also clear that once an assessment is done, the amount assessed must be paid irrespective of the fact that an objection or appeal has been lodged against the assessment. In other words, and as rightfully pointed out by Counsel for the Appellant, the import of the provisions of Section 77 (4) and (6) of the Income Tax Act is that the person or entity on whom a notice of assessment has been served must pay the amount payable under the notice and argue later based on the objection or appeal lodged against the assessment. This is the position we took in Zambia Revenue Authority v Post Newspapers Limited, 11 where we put it thus:- “Coming to grounds two and three, we note that the pending appeal does not question the amount of tax due. Notwithstanding that, we agree with Mrs. Goramota and Mr. Mwamba that in issuing a stay, the learned trial Judge disregarded Section 77 (4) of the Income Tax Act, which requires that tax be paid on the date due. The stay prevented the ZRA from levying distress for Tax under the Income Tax Act.” We also agree with the position by the learned Counsel for the Appellant that a proper reading of Section 87 of the Income Tax Act, J J33 Section 92 of the Customs and Excise Act and Section 19 of the Value added Tax Act, which provide for refunds to the taxpayer by the ZRA (Respondent) of any tax that is overpaid or paid in error, shows that once an assessment has been done by ZRA, tax becomes payable and should the taxpayer succeed in its appeal there is provision within the law for a refund. For the reasons stated above, the argument that the RAT has power to grant a stay pending the determination of an appeal before it cannot stand. As regards the argument by Counsel for the Respondent that the effect of Section 77 (6) of the Income Tax Act is the same as that of Rule 51 of the Supreme Court Rules (SCR), for clarity we recast hereunder the provisions of Rule 51 of the SCR as follows:- “An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated except so far as the Court may direct.” As much as we agree that an appeal does not operate as a stay as provided under Rule 51 of the SCR, there is a difference with Section 77 (6) of the Income Tax Act as the latter clearly provides that subsection (4) shall have effect notwithstanding that the person assessed objects or appeals against the assessment. Clearly the statute here does not allow f ' - J34 the RAT to stay the payment of tax once it has been assessed even where an appeal or objection has been made whereas Rule 51 of the SCR provides that an appeal shall not operate as a stay unless the High Court or the Supreme Court grants a stay. In fact, Section 77 (6) generally prohibits stays against tax assessments even where there is an appeal or objection as it is worded in a mandatory manner. For the reasons stated above, we find merit in Ground one of this w Appeal. We allow it. Ground two attacks the learned appellate Judge for ordering that the ex-parte order of stay dated 18th February, 2013 which a single member of the RAT granted should remain in force pending determination of the inter-partes application for a stay by the requisite constituted quorum of the RAT. This was after the learned appellate Judge had found that a single member of the RAT did not have • jurisdiction to hear and determine an exparte application for a stay. The core of Counsel for the Appellant’s arguments in support of Ground two is that the appellate Judge, having found that a single member of the RAT did not have jurisdiction to hear and determine an application for stay of execution, there was no basis for the appellate Judge to reinstate the ex-parte Order of Stay granted by a single member of the RAT. > J35 The gist of Counsel for the Respondent’s arguments in response to Ground two is that a single member of the RAT has ancillary power to grant a stay of execution subject to confirmation by the full Tribunal. Hence, the learned appellate Judge was on firm ground when she ordered the ex-parte order of stay of execution to remain in force pending inter-partes determination of the application by a requisite quorum of the Tribunal. ' We have considered the above arguments. In the judgment appealed against, the learned appellate Judge found, inter alia, that a single member of the RAT did not have jurisdiction to hear and determine an application for stay of execution as it is a statutory requirement under Regulation 4 of the RAT Regulations that a quorum of three members of the RAT must be composed for the purpose of conducting any meeting. This finding is fortified by the provision of ) Regulation 4, which the learned appellate Judge relied upon. Regulation 4 provides as follows:- “4. (1) The quoram of the Tribunal shall be three, of which one shall be an accountant. (2) There shall preside at any meeting of the Tribunal- (a) the Chairperson; (b) (c) in the absence of the Chairperson, the Vice­ Chairperson; or in the absence of the Chairperson and the Vice­ Chairperson such members as the members £ * • J36 present may elect for the purpose of that meeting (3) The determination of any matter before the Tribunal shall be by a majority of the members present.” We agree with the finding by the learned appellate Judge as that is the correct interpretation of the law in the RAT Act and Regulations that a single member of the Tribunal has no jurisdiction or power to grant a stay. It therefore, follows that the learned Judge, having found that a single member had no jurisdiction to grant a stay, she misdirected herself when she went on to order that the ex parte Order of Stay granted by a single member of the Tribunal should remain in force pending the determination of the inter-partes application by the requisite quorum of the Tribunal. Further, having found above that the RAT has no jurisdiction or power to grant stays of execution, the order or directive by the learned ) Judge of referring the matter back to the Tribunal to hear the application for a stay cannot stand as it was null and void ab initio. The same is set aside. For the reasons stated above, we find merit in Ground 2 of this Appeal. We allow it. J37 Both Grounds one and two of this appeal having succeeded, the sum total is that this appeal has succeeded. The same is upheld with costs to the Appellant, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE E. M. Hamaundu SUPREME COURT JUDGE . Kaoma SUPREME COURT JUDGE