Civil Reference No. 7 of 2004
The respondent, Tanzania Revenue Authority, was dissatisfied with the decision of the Tax Revenue Appeals Tribunal delivered on 22nd November 2013. It filed a Notice of Appeal on 5th December 2013, which was received and acknowledged by the applicant's counsel on 6th December 2013. The Tribunal Registrar notified the respondent of the decision by letter dated 12th December 2013, enclosing copies of the proceedings, judgment and decree. Despite this, the respondent took no further action to institute the appeal. The applicant, Airtel Tanzania Ltd, subsequently filed the present application by Notice of Motion under Rules 60(2) and 89(2) of the Tanzania Court of Appeal Rules, 2009, seeking to strike out the respondent's Notice of Appeal on the ground that an essential step in the proceedings — instituting the appeal — had not been taken within the prescribed time. The application was supported by an affidavit and written submissions. The respondent, though duly served with the Notice of Motion (16 September 2014) and the written submissions (6 November 2014), did not file any affidavit in reply or written submissions, and was absent at the hearing despite due service, resulting in the matter proceeding in her absence.
Whether the respondent breached Rule 90(1) of the Tanzania Court of Appeal Rules, 2009 by failing to institute the appeal within sixty days of lodging the Notice of Appeal, and whether such failure, absent a certificate of delay under the proviso to Rule 90(1), warranted striking out the Notice of Appeal under Rule 89(2).
The applicant, through counsel Mr. Makarious Tairo, argued that after lodging the Notice of Appeal on 5th December 2013, the respondent was duly notified by the Tribunal Registrar's letter of 12th December 2013, which enclosed the proceedings, judgment and decree, yet the respondent failed to institute the appeal within the sixty-day period prescribed by Rule 90(1) of the Rules. The applicant contended that no certificate of delay existed to justify reliance on the proviso to Rule 90(1) (which excludes time taken to obtain a copy of proceedings requested within thirty days of the decision), and therefore the Notice of Appeal ought to be struck out with costs for failure to take an essential step in the proceedings. The respondent, despite being duly served with the Notice of Motion and the applicant's written submissions, filed no affidavit in reply and made no submissions, and was absent at the hearing; consequently, no arguments were advanced on her behalf, leaving the applicant's factual averments uncontested.
The Court allowed the application and struck out the respondent's Notice of Appeal with costs. It held that, in the absence of any evidence that the respondent had requested a copy of the proceedings within thirty days of the decision (which could have entitled her to rely on the proviso to Rule 90(1) excluding time certified by the Registrar), and in the absence of any certificate of delay, the respondent was obliged to institute the appeal within sixty days of lodging the Notice of Appeal on 5th December 2013. Since the respondent took no further step and did not institute the appeal at all, she was in breach of Rule 90(1). Citing its earlier decision in Olivia Kisinja Mdete v Hilda Mkinga (Civil Application No. 4 of 2011), the Court reiterated that upon lodging a Notice of Appeal, an intending appellant must not sit back but must move the process forward by taking the essential steps outlined in the Rules, and that an applicant is entitled under Rule 89(2) to have a notice of appeal struck out where no essential steps beyond the notice have been taken.
The ruling reaffirms the settled principle in Tanzanian appellate procedure that lodging a Notice of Appeal does not, by itself, preserve an intending appellant's right to appeal; the appellant must actively pursue the appeal by instituting it within the sixty-day period prescribed by Rule 90(1) of the Court of Appeal Rules, absent a valid certificate of delay under the proviso. The case reinforces the Court's willingness under Rule 89(2) to strike out notices of appeal where essential subsequent steps are not taken, and underscores the evidentiary consequence of a respondent's failure to contest an application, as her passiveness left the applicant's factual claims uncontested and effectively decisive. The decision also relies on and reaffirms the precedent set in Olivia Kisinja Mdete v Hilda Mkinga regarding the obligation to move the appeal process forward diligently.
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