Civil Reference No. 7 of 2004
The applicant, Vodacom Foundation, sought an extension of time under rule 10 of the Tanzania Court of Appeal Rules, 2009 to lodge a memorandum and record of appeal against the decision of the Tax Revenue Appeals Tribunal delivered on 15.12.2016 in Civil Appeal No. 11 of 2015. The applicant explained that it delayed filing because it was pursuing a certificate on a point of law from the Tribunal, believing this was mandatory following the Court's decision in G.S Contractors Limited v. Commissioner General (TRA), Civil Appeal No. 80 of 2015. While that certification application (Application No. 2 of 2017) was pending, the applicant learned that the Court, in a review (Civil Application No. 155 of 2016), had varied its earlier position and held that a certificate on a point of law was no longer required for appeals from the Tribunal. The applicant then withdrew its Tribunal application on 21.02.2017 and filed the present application for extension of time on 02.03.2017. The applicant also cited delay in obtaining certified copies of exhibits tendered before the Tax Revenue Appeals Board, relying on African Barrick Gold Mine Plc v. Commissioner General (TRA) to argue such exhibits must form part of the record of appeal. The respondent did not file an affidavit in reply or written submissions and, at the hearing, conceded to the application.
Whether the applicant demonstrated 'good cause' under rule 10 of the Tanzania Court of Appeal Rules, 2009 to justify the Court's exercise of discretion to extend time for lodging the memorandum and record of appeal, including whether every period and day of delay had been sufficiently accounted for and whether the applicant acted with due diligence.
The applicant, through counsel, argued that the delay was excusable because it stemmed from a genuine need to comply with what it understood to be a mandatory requirement—obtaining a certificate on a point of law from the Tribunal—based on the Court's earlier ruling in Civil Appeal No. 80 of 2015. It contended that upon learning of the subsequent review decision in Civil Application No. 155 of 2016, which removed this requirement, it promptly withdrew its Tribunal application and filed the present application. The applicant further argued that it needed time to obtain certified copies of exhibits from the Tax Revenue Appeals Board to comply with rule 96 of the Rules, relying on African Barrick Gold Mine Plc v. Commissioner General (TRA). It also invoked Amani Centre for Street Children v. Visa Construction Company Limited to argue that it had acted diligently, which is the touchstone for such applications. The respondent, through counsel, raised no objection to the application, did not file an affidavit in reply or written submissions, and conceded to the grant of the extension, leaving no rejoinder necessary from the applicant.
The Court (Mwambegele, J.A.) held that the application was without merit and dismissed it, notwithstanding the respondent's concession. While the period between the Tribunal's decision, the filing of the notice of appeal, and the striking out of Civil Appeal No. 80 of 2015 was excusable as 'technical delay' under Fortunatus Masha v. William Shija and Another, the applicant failed to sufficiently account for two subsequent periods: (i) the roughly ten-and-a-half month gap between the pronouncement of Civil Appeal No. 80 of 2015 (22.03.2016) and the filing of the certification application in the Tribunal (27.01.2017), which was explained only by a general and unsubstantiated statement that counsel was 'busy seeking certification'; and (ii) the period between the pronouncement of Civil Application No. 155 of 2016 (07.02.2017) and the withdrawal of the Tribunal application (21.02.2017) and subsequent filing of the present application (02.03.2017), including an unexplained nine-day gap. The Court also found the applicant's explanation regarding the wait for certified exhibits from the Board insufficiently substantiated, as no dates of application or receipt were provided. Applying the principle from Bushiri Hassan v. Latifa Lukio Mashayo that delay of even a single day must be accounted for, and citing Dr. Ally Shabhay v. Tanga Bohora Jamaat on the need to avoid unnecessary delay and show great diligence, the Court concluded the applicant had not demonstrated the diligence or complete accounting of delay necessary to establish good cause. The application was dismissed, with no order as to costs given the respondent's support of the application.
The ruling reinforces the settled principle in Tanzanian appellate practice that extension of time under rule 10 of the Court of Appeal Rules is discretionary and contingent upon the applicant demonstrating 'good cause,' which requires accounting for every day of delay and showing diligence, not merely general or sweeping explanations. It illustrates that even where a portion of delay is excusable as 'technical delay' arising from confusion caused by an intervening judicial decision (here, the shifting requirement of certification on a point of law between Civil Appeal No. 80 of 2015 and its review in Civil Application No. 155 of 2016), an applicant must still fully and specifically justify all other periods of delay, including short gaps of just a few days. The case also confirms that a respondent's concession to an application does not bind the Court, which retains an independent duty to scrutinize whether the statutory standard for extension of time has been met. It reaffirms reliance on established authorities such as Bushiri Hassan v. Latifa Lukio Mashayo and Dr. Ally Shabhay v. Tanga Bohora Jamaat on the necessity of diligence and complete explanation of delay in applications for enlargement of time.
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