Civil Reference No. 7 of 2004
The applicant, Akiba Commercial Bank Limited, sought an extension of time to lodge an application for stay of execution of a judgment of the Tax Revenue Appeals Tribunal (TRAT) delivered on 26.09.2010 in Tax Appeal No.5 of 2008. Under rule 23(3) of the TRAT Rules, an application for execution ought to be lodged within 30 (or 60) days of the Tribunal's decision, but the applicant did not do so, believing that lodging a Notice of Appeal to the Court of Appeal sufficed given the pending appeal. The applicant's substantive appeal was later withdrawn by the Court of Appeal on 15.06.2016 because the decree was defective. The applicant then returned to the Tax Revenue Appeals Board (TRAB) and TRAT to obtain a properly signed decree; the TRAT decree was supplied on 02.03.2017, but the TRAB decree remained outstanding. Citing several similarly affected cases, the applicant took time to prepare and review the law before filing an application for extension of time. A first such application was withdrawn on 18.08.2017 (with the withdrawal order served on 08.09.2017), and the present application was filed on 18.09.2017. The application was supported by an affidavit of Hadija Kinyaka and resisted by an affidavit in reply from Primi Telesphory Manyanga, though at the hearing the respondent's counsel indicated no continuing objection, subject to security being provided, and proposed each party bear its own costs.
Whether the applicant had demonstrated sufficient or good cause to justify the Court of Appeal granting an extension of time, under rule 10 of the Tanzania Court of Appeal Rules, 2009, within which to lodge an application for stay of execution of the Tribunal's judgment.
The applicant, through Ms. Kinyaka, argued that the delay was occasioned by a reasonable and mistaken understanding of the TRAT Rules regarding the interplay between an application for execution and a pending Notice of Appeal, and that any application for execution would have been futile given the eventual finding that the original decree was defective. She further argued that the delay in seeking a fresh, properly signed decree from TRAB and TRAT, compounded by similar procedural anomalies in several other cases requiring review of the law, justified the time taken to prepare and file the application. She noted that a prior application for extension had been withdrawn due to an apparent defect and that the present application was filed promptly after being served with the withdrawal order. She prayed that costs abide the outcome of the intended stay application. The respondent, through Mr. Busegano, had initially filed an affidavit in reply and written submissions opposing the application, but at the hearing withdrew opposition, stating the respondent no longer objected provided the applicant furnished security for due performance of the decree, and proposed that each party bear its own costs.
The Court (Mwambegele, J.A.) held that the applicant had shown good cause for the delay in applying for stay of execution. The Court found that the applicant was justified in seeking a proper decree after the original appeal collapsed due to a defective decree, and that the subsequent steps—including the withdrawal and prompt refiling of the extension application—demonstrated diligence rather than negligence. Despite noting some inconsistency in the respondent's conduct (having filed papers opposing the application but then conceding it, and shifting position on costs), the Court accepted the unopposed application as meritorious. It granted the applicant thirty (30) days from the date of the ruling to file the application for stay of execution, and made no order as to costs, in line with the respondent's position.
The ruling illustrates the Court of Appeal of Tanzania's approach to extension of time applications under rule 10 of the Court of Appeal Rules, emphasizing that genuine procedural difficulties—such as the need to rectify a defective decree following the collapse of an appeal, and diligent, timely efforts to correct such defects—can constitute good cause for delay. It underscores that promptness in refiling after withdrawing a flawed application is a relevant factor favoring the grant of an extension. The case also reflects the Court's willingness to scrutinize, and express disapproval of, inconsistent litigation conduct by a party (here, the respondent) even while ultimately respecting the parties' agreement on matters such as costs.
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