Civil Reference No. 7 of 2004
The applicant, Twiga Bancorp Limited, sought to challenge a decision of the Tax Revenue Appeals Tribunal dated 5th September, 2013 (Appeal No. 1 of 2013). After the Tribunal's decision, the applicant lodged a Notice of Appeal on 24th September, 2013 and, on 22nd November, 2013, filed Civil Application No. 203 of 2013 seeking a stay of execution of the Tribunal's decree. On 17th January, 2014, it lodged a memorandum and record of appeal, instituting Civil Appeal No. 2 of 2014. While that appeal was pending, the applicant discovered that the Tribunal's proceedings, judgment and decree were invalid because they had not been signed and certified by all presiding members, a defect highlighted by the Court's decision in Civil Appeal No. 13 of 2011 - Midcom Tanzania Limited vs Commissioner General, TRA (delivered 20th March, 2015). Apprehensive that its pending appeal would fail on this ground, the applicant withdrew Civil Appeal No. 2 of 2014 on 28th May, 2015 to allow rectification of the Tribunal's documents. It had already, on 13th April, 2015, requested certified copies of the Tribunal's proceedings, judgment and decree, and on 25th April, 2015 lodged a fresh Notice of Appeal after obtaining an extension of time from the Tribunal. The requested Tribunal documents were finally supplied on 2nd March, 2017, and the applicant lodged the present application for extension of time to apply for stay of execution on 1st June, 2017, under Rule 10 of the Tanzania Court of Appeal Rules, 2009, supported by an affidavit of its Principal Officer, Mr. Wilfred Mkude. The respondent, the Commissioner General (TRA), resisted the application through an affidavit sworn by its advocate, Gloria Achimpota.
Whether the applicant demonstrated sufficient cause to justify an extension of time within which to apply for a stay of execution and enforcement of the Tribunal's decision, given the lapse of time and the procedural history involving the earlier stay application and appeal.
For the applicant, Ms. Kinyaka submitted that the delay in lodging the application for stay of execution was not attributable to the applicant's negligence or lack of due diligence, but arose from the need to rectify defective Tribunal documents (which were unsigned/uncertified by all presiding members) following the Court's decision in Midcom Tanzania Limited vs Commissioner General, TRA, and from the time taken by the Tribunal to supply certified copies of the proceedings, judgment and decree (finally delivered on 2nd March, 2017). She relied on Civil Application No. 2 of 2007 Isginia Limited vs Commissioner General, TRA and Fourtunatus Masha vs William Shija and Another [1997] TLR 155 to support the application. For the respondent, Mr. Busegano argued that the application was misconceived and an abuse of court process, contending that the applicant, having previously filed Civil Application No. 203 of 2013 for stay of execution which was never formally struck out or withdrawn, could not be permitted to file a fresh application for extension of time to lodge another stay application. He argued that the failure to comply with proper procedure evidenced negligence, ill intent and lack of due diligence, and that the withdrawal of Civil Appeal No. 2 of 2014 could not cause the collapse of the earlier Application No. 203 of 2013.
The Court (Mussa, J.A.) granted the application, extending time and giving the applicant leave to file the desired application for stay of execution within thirty (30) days from the date of the Ruling, with costs to abide the result in the main cause. On the respondent's abuse-of-process argument, the Court held that, technically, with the withdrawal of Civil Appeal No. 2 of 2014, the previous stay application (Civil Application No. 203 of 2013) was left with no leg to stand on, since the Notice of Appeal — a pre-requisite for a stay application — had crumbled upon that withdrawal; hence there was no bar to the applicant seeking a fresh extension of time. On the merits, applying the principle from Shanti v Hindocha [1973] EA 207 that an application for extension of time is concerned with showing 'sufficient reason' for the delay, and particularly whether the delay was caused by dilatory conduct, the Court examined the period between 2nd March, 2017 (when the Tribunal documents were finally supplied) and 1st June, 2017 (when the application was lodged). Noting the bulkiness of the Notice of Motion and its accompanying documents, the Court found the delay in lodgment excusable and concluded that the applicant had shown sufficient cause for the extension.
The Ruling clarifies that the withdrawal of a substantive appeal (for which a Notice of Appeal is a pre-requisite) causes an ancillary application for stay of execution filed in reliance on that appeal to fall away, such that it need not be formally struck out before a fresh extension of time application can be entertained. It also reinforces, by reliance on Shanti v Hindocha, that the touchstone for extension of time applications is whether the delay was caused by the applicant's own dilatory conduct, rather than requiring a showing of an arguable case or reasonable prospect of success on the merits of the intended application. The decision further illustrates the practical consequence of the Court's earlier ruling in Midcom Tanzania Limited vs Commissioner General, TRA regarding the invalidity of Tribunal decisions not properly signed and certified by all presiding members, showing how litigants had to adjust procedural strategy (withdrawing appeals, seeking certified documents) in response to that precedent.
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