Civil Reference No. 7 of 2004
Tanzania Revenue Authority ('TRA') had unsuccessfully attempted to appeal against a judgment of the High Court of Tanzania at Arusha (Civil Case No. 38 of 2000). Its first appeal (Civil Appeal No. 83 of 2004) was struck out in 2005 because the Certificate of Delay relied upon was invalid. TRA then applied for and obtained (from Kimaro, J.A., in Civil Application No. 5 of 2006/2005) extension of time to file a fresh Notice of Appeal, which was lodged on 8 May 2008. Shortly thereafter, TRA filed Civil Application No. 9 of 2008 seeking extension of time to file the Memorandum and Record of Appeal, relying on the earlier ruling granting leave to appeal and asserting no prejudice to the respondent, Tango Transport Co. Ltd. Tango Transport, in turn, filed Civil Application No. 4 of 2009 seeking to strike out TRA's Notice of Appeal under Rule 82 of the Court of Appeal Rules for failure to take an essential step (lodging the Memorandum and Record of Appeal within time and for want of a valid Certificate of Delay), and also sought to have TRA's Application No. 9 of 2008 struck out as superfluous and improper. The two applications were consolidated and heard together by Massati, J.A.
1. Whether Civil Application No. 4 of 2009 (Tango Transport's application to strike out) was itself properly before the Court, given that it was not supported by an affidavit of the Applicant itself but by its advocate, and given that it sought to preempt TRA's pending Application No. 9 of 2008. 2. Whether TRA's Application No. 9 of 2008, seeking extension of time to file the Memorandum and Record of Appeal after a Notice of Appeal had already been lodged pursuant to an earlier extension, was superfluous, improper, or otherwise not maintainable in light of the decision in NSSF v New Kilimanjaro Bazaar Ltd. 3. Whether the Notice of Appeal filed by TRA should be struck out under Rule 82 of the Court of Appeal Rules for failure to take an essential step in the proceedings (i.e., for not lodging the Memorandum and Record of Appeal in time). 4. Whether TRA had shown sufficient reason under Rule 8 of the Court of Appeal Rules to justify extension of time to file the Memorandum and Record of Appeal.
For Tango Transport (Mr. Sang'ka): It was argued that once a Notice of Appeal had been lodged following an earlier extension of time, the decision in NSSF v New Kilimanjaro Bazaar Ltd. rendered a further application for extension of time to file the Memorandum and Record of Appeal unnecessary and improper. It was submitted that TRA's Notice of Appeal should be deemed withdrawn because no appeal had been instituted within the time prescribed by Rule 83(1), and that Application No. 9 of 2008 was superfluous, filed merely to preempt Tango's application to strike out. Reliance was placed on Kermal v Registrar of Buildings and A.A. Talib v E.N. Kiweni Mushi for the proposition that any request for extension should have been made together with the earlier application before Kimaro, J.A., and that filing a separate, later application was an abuse of process. It was also argued that Application No. 4 of 2009 need not be supported by the Applicant's own affidavit, as an affidavit by counsel with knowledge of instructions sufficed under Rule 46. For TRA (Mr. Bundala/Dr. Twaib): It was argued that Rule 8 of the Court of Appeal Rules permits an application for extension of time to be made at any stage, before or after expiry of the prescribed period, and that prudent practice (per Kermal and Talib) justified filing a separate application given uncertainty as to compliance with time limits. It was submitted that TRA had acted diligently throughout, that the delay was not inordinate, that the intended appeal raised arguable points (including the High Court's jurisdiction to try the tax matter), and that no prejudice to Tango Transport had been shown, especially since Tango filed no affidavit in reply to TRA's affidavit and thus the averments in paragraphs 12–14 of TRA's supporting affidavit stood uncontroverted. It was further argued that Application No. 4 of 2009 was itself defective for lacking the Applicant's own affidavit and for improperly seeking to preempt TRA's pending application, contrary to the spirit of Talib's case.
The Court (Massati, J.A.) held: (1) Application No. 4 of 2009 was properly before the Court; an affidavit by counsel with instructions and knowledge of the relevant facts satisfies Rule 46(1), and Talib's case does not render such a 'counter application' illegal, only potentially untidy practice. (2) TRA's Application No. 9 of 2008 was not superfluous or improper. The NSSF case was distinguishable because there the Memorandum and Record of Appeal had already been filed within time; here, none had been filed at all. Although in principle the request for extension could have been made together with the earlier application before Kimaro, J.A., proceeding separately did not deprive the Court of jurisdiction absent vexatious or frivolous multiplicity of actions, which was not shown here. (3) The Notice of Appeal could not be struck out under Rule 82 for failure to take an essential step, because the pending application for extension of time to file the Memorandum and Record of Appeal itself constituted an 'essential step in the proceedings' within the meaning of Rule 82, read together with Rule 8. Accordingly, Tango Transport's counter notice of motion to strike out the Notice of Appeal and Application No. 9 of 2008 was dismissed. (4) On the merits of Application No. 9 of 2008, applying principles drawn from Kermal, Mariaria, Talib, Wanendeya, Valambhia, African Airlines International, and Msago v Shah, the Court identified the relevant factors for exercising discretion under Rule 8: length of delay, reason for delay, arguability of the intended appeal, and degree of prejudice to the respondent. Because Tango Transport filed no affidavit in reply, the averments in TRA's affidavit (paragraphs 12–14, and paragraph 5 of the reply affidavit) as to diligence, reasons for delay, and absence of prejudice were taken as uncontroverted per John D. Kerenge v Joel. The Court found TRA had shown sufficient reason for extension, granted the application, and ordered TRA to file the Memorandum and Record of Appeal within 30 days, with costs to follow the event in the intended appeal.
The ruling clarifies the scope and interaction of Rules 8, 46, and 82 of the Tanzania Court of Appeal Rules, 1979. It establishes that a pending application for extension of time to file a Memorandum and Record of Appeal can itself constitute an 'essential step in the proceedings' sufficient to defeat an application to strike out a Notice of Appeal under Rule 82. It distinguishes NSSF v New Kilimanjaro Bazaar Ltd., confirming that separate applications for extension of time to file a Notice of Appeal and, subsequently, a Memorandum and Record of Appeal are not per se improper or superfluous, particularly where the memorandum has not yet been filed at all (as opposed to being filed within an extended but still-compliant period). It also reinforces the principle from John D. Kerenge v Joel that failure to file a counter affidavit results in the opposing party's averments being treated as uncontroverted, and consolidates, from a line of Tanzanian and persuasive Kenyan authorities (Mariaria, Wanendeya, Valambhia, African Airlines International, Msago v Shah), a structured four-factor test for exercising discretion to extend time under Rule 8: length of delay, reason for delay, arguability of the intended appeal, and prejudice to the respondent. The decision underscores that procedural irregularities in sequencing applications, while undesirable and potentially productive of confusion, do not automatically amount to illegality or abuse of process absent vexatious repetition.
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