Civil Reference No. 7 of 2004
The applicant, the Commissioner General of the Tanzania Revenue Authority, sought an order from the Court of Appeal staying execution of a Ruling delivered by the Tax Revenue Appeals Tribunal on 13 September 2004 in Revision Application No. 8 of 2003, pending the hearing and determination of an appeal to the Court of Appeal. The respondent, Parastatal Pensions Fund, filed a notice of preliminary objection under Rule 100 of the Court of Appeal Rules challenging the competency of the application on three grounds: (i) that the application was hopelessly time-barred; (ii) that the Notice of Motion was defective in form and substance; and (iii) that the application was incompetent for want of the order sought to be stayed being annexed. At the hearing, the respondent's advocate abandoned the second ground but pursued the first and third grounds.
(1) Whether the application for stay of execution was time-barred, having been filed well beyond the period this Court has, through case law, treated as applicable to such applications. (2) Whether the application was incompetent because the order sought to be stayed (as opposed to the Ruling) was not attached to the Notice of Motion, and whether such attachment is a mandatory requirement of practice carrying the force of law.
For the respondent, Mr. Maro argued that although neither the Appellate Jurisdiction Act nor the Rules made thereunder prescribe a limitation period for filing an application for stay of execution, the Court of Appeal has, through decided cases (James Masanja Kasuka v. George Humba; Suleman Ally Nyamategi & Two Others v. Mwanza Engineering Works Ltd; Commissioner General, TRA v. National Social Security Fund), established a 60-day limitation period running from the date of the decision sought to be stayed. Computing from 13 October 2004, he submitted the application should have been filed by 12 November 2004, but was instead filed on 2 June 2005—eight months nineteen days late—rendering it time-barred. On the third ground, Mr. Maro submitted that although no specific rule requires attachment of the order sought to be stayed, this requirement has evolved through decided cases of the Court and was not complied with. For the applicant, Mr. Lugaiya conceded the first ground of complaint without further argument. On the third ground, he submitted that the Ruling in Revision Application No. 8 of 2003 between the same parties had in fact been attached to the Notice of Motion, and that this constituted sufficient compliance with the Court's evolved practice.
The Court, per Nsekela, J.A., addressed the third ground first. It held that while the requirement to attach a copy of the decree or order sought to be stayed to an application for stay of execution is a matter of practice rather than a strict statutory requirement, such practice, once evolved and consistently applied by the Court, acquires the same legal force as express provisions of the Rules. Relying on Hassani Ramadhani v. Saada Mussa (Civil Application No. 84 of 2003) and the Court's endorsement of that position in Civil Reference No. 1 of 2005, Sugar Board of Tanzania v. 21st Century Food & Packaging Ltd. and Two Others (which in turn discussed Blue Star Service Station v. Jackson Musetti, Consolidated Holding Corporation v. Rajani Industries, and Dunhill Motors Ltd v. Tanzania Revenue Authority), the Court held it is now settled law that attaching only the Ruling, rather than the actual order sought to be stayed, does not satisfy this requirement. Since the applicant had attached only the Ruling and not the order, the application was incompetent on this ground. The Court sustained the preliminary objection and struck out the application with costs. Given this conclusion, it found it unnecessary to determine the first ground concerning limitation.
The ruling reaffirms and consolidates the Tanzanian Court of Appeal's jurisprudence that certain procedural practices developed through case law—specifically the requirement to attach the order (not merely the underlying ruling or judgment) sought to be stayed to an application for stay of execution—carry binding legal force equivalent to express provisions of the Court of Appeal Rules, even absent explicit statutory or rule-based mandate. It underscores that litigants must attach the precise order under challenge, distinguishing it from the ruling or judgment from which the order emanates, and confirms that non-compliance renders an application for stay of execution incompetent and liable to be struck out, irrespective of other potential defects such as limitation.
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