Civil Reference No. 7 of 2004
The applicant, Karibu Textile Mills Limited, had a VAT assessment dispute with the Commissioner General (TRA) which was decided in its favour by the Tax Revenue Appeals Board but reversed on appeal by the Tax Revenue Appeals Tribunal on 8.10.2010. The applicant lodged a timely appeal to the Court of Appeal, but while that appeal was pending, the Court decided Midcom Tanzania Limited v. Commissioner General (TRA), holding that Tribunal proceedings and decrees are invalid unless signed and certified by the chairman/vice-chairman and all presiding members. As the applicant's appeal suffered this defect, she withdrew it on 21.04.2015 (marked withdrawn 28.05.2015) and sought to cure the defects. She obtained leave to lodge a fresh Notice of Appeal (25.04.2016). Thereafter, following the Court's decision in G.S Contractors Limited v. Commissioner General (TRA) (Civil Appeal No. 80 of 2015), which treated Tribunal appeals as third appeals requiring a certificate on points of law, she obtained such a certificate (31.05.2016). This decision was later varied on review in Civil Application No. 155 of 2016, clarifying that such appeals were second, not third, appeals not requiring a certificate. The applicant then, relying on African Barrick Gold Mine Plc v. Commissioner General (TRA), sought to ensure the record of appeal was complete under rule 96 of the Court of Appeal Rules, obtaining a duly signed decree from the Board (22.03.2017) and certified exhibits (27.03.2017). By then she was out of time to lodge the memorandum and record of appeal, prompting this application under rule 10 of the Tanzania Court of Appeal Rules, 2009 for extension of time, filed on 27.04.2017.
Whether the applicant demonstrated 'good cause' under rule 10 of the Tanzania Court of Appeal Rules, 2009, to warrant the Court's exercise of discretion to extend time for lodging the memorandum and record of appeal, notwithstanding the respondent's concession to the application.
The applicant argued that good cause existed for the delay because the original appeal was lodged in time but had to be withdrawn due to procedural defects flowing from the Court's decision in Midcom, and that she thereafter diligently pursued compliance with subsequent Court decisions (Civil Appeal No. 80 of 2015, its review in Civil Application No. 155 of 2016, and African Barrick Gold Mine) to perfect her intended appeal. She relied on Amani Centre for Street Children v. Viso Construction Company Ltd, Insignia Limited v. Commissioner General (TRA), and Fortunatus Masha v. William Shija & another to argue that extension of time is a discretionary exercise to be judicially applied according to the circumstances of each case, and prayed for the application to be allowed with costs. The respondent's counsel conceded to the application and withdrew the sole paragraph in the affidavit in reply contesting the applicant's affidavit, leaving the application substantively unchallenged, and advanced no written submissions or further arguments.
The Court held that despite the respondent's concession, it remained obliged to independently assess whether good cause had been shown for the delay, since concession does not exonerate an applicant from this burden. The Court found that the applicant had adequately explained the delay from the withdrawal of the original appeal up to 27.03.2017, when she was finally supplied with certified exhibits from the trial, as this period was consumed in genuinely complying with evolving Court of Appeal jurisprudence (Midcom, Civil Appeal No. 80 of 2015, and its review). However, the Court found the reliance on African Barrick Gold Mine questionable, since the requirement to include documentary evidence in the record of appeal under rule 96(1)(f) and (2) was already settled law well before that case, as shown by earlier decisions such as Joseph Onaukiro Ngiloi v. The Permanent Secretary and Mangenyula Irumbila & Another v. Dar es Salaam City Council. More critically, the Court found that the applicant had failed entirely to explain the further one-month delay between 27.03.2017 (when the compliance process was completed) and 27.04.2017 (when the present application was filed). Citing the principle from Bushiri Hassan v. Latifa Lukio Mashayo that every day of delay must be accounted for, and reaffirming this via Ratnam v. Cumarasamy, Godwin Ndewesi and Karoli Ishengoma v. Tanzania Audit Corporation, and Dr. Ally Shabhay v. Tanga Bohora Jamaat, the Court concluded that the applicant had not demonstrated the requisite diligence for this unexplained period. Consequently, the Court held that good cause had not been established, and dismissed the application. No order was made as to costs, given the respondent's support of the application.
This ruling reaffirms and applies the settled principle in Tanzanian appellate practice that an application for extension of time under rule 10 of the Tanzania Court of Appeal Rules requires the applicant to show good cause, and that every single day of delay—no matter how short—must be specifically accounted for, regardless of the other party's concession to the application. The case illustrates that partial diligence in complying with evolving case law (here, multiple shifts in Court of Appeal jurisprudence on Tribunal appeals) does not excuse a subsequent unexplained delay, however brief. It also demonstrates that reliance on a subsequent decision to justify delay is unavailing where that decision merely restates a pre-existing, well-established legal principle (as with the rule 96 record-of-appeal requirement clarified, but not newly created, in African Barrick Gold Mine). The ruling reinforces the strict, non-discretionary evidentiary threshold applicants must meet even when the opposing party does not contest the application, emphasizing judicial insistence on procedural diligence and adherence to prescribed timelines in litigation.
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