Civil Reference No. 7 of 2004
Engen Petroleum (T) Ltd (the applicant) lost before the Tax Revenue Appeals Tribunal in a decision dated 20 September 2004. On 23 September 2004 the applicant lodged a notice of appeal against that decision. It also filed a chamber application before the Tribunal seeking leave to appeal to the Court of Appeal under section 5(1)(c) of the Appellate Jurisdiction Act, Rule 43(a) of the Court of Appeal Rules, and Rule 24(3) of the Tax Revenue Appeals Tribunal Rules. While that leave application was still pending, the applicant lodged a notice of motion before the Court of Appeal under Rule 9(2)(b) and Rule 45(1) and (2) of the Court Rules, seeking a stay of execution of the Tribunal's judgment and decree pending the intended appeal. On 27 October 2004 the Tribunal struck out the application for leave to appeal. Subsequently, on 8 November 2004, the applicant lodged a further application before the Court of Appeal under Rule 43(b) of the Court Rules, which had not yet been heard. The respondent, the Commissioner General, Tanzania Revenue Authority, raised a preliminary objection under Rule 100 of the Court Rules challenging the competency of the stay application, given that leave to appeal had been refused by the Tribunal.
Whether, in the absence of leave to appeal (which had been struck out by the Tribunal), the application for stay of execution pending appeal was competent; and specifically, whether leave to appeal is a prerequisite for the Court of Appeal to grant a stay of execution under Rule 9(2)(b) of the Court of Appeal Rules, 1979.
The respondent, through Mr. Teemba, argued that since the Tribunal had struck out the applicant's application for leave to appeal on 27 October 2004, there was, for all practical purposes, no intended appeal, rendering the application for stay of execution futile. He contended that the proper procedure required the applicant to first obtain leave to appeal before lodging an application for stay of execution, and that the applicant had "put the cart before the horse." The applicant, through Mr. Ringia, conceded that the application for leave to appeal had been struck out, but pointed out that a fresh application under Rule 43(b) of the Court Rules had been lodged before the Court of Appeal on 8 November 2004 and remained undetermined. More significantly, he argued that what currently existed and mattered for purposes of the stay application was the notice of appeal, not an order granting leave to appeal, relying on the precedent in Civil Reference No. 7 of 2004, East African Development Bank v. Blue Line Enterprises Limited and A.T.H. Mwakyusa.
The Court dismissed the preliminary objection with costs. Nsekela, J.A. held that the applicable provision, Rule 9(2)(b) of the Court of Appeal Rules, only requires that a notice of appeal be lodged in accordance with Rule 76 for the Court to have jurisdiction to order a stay of execution; it does not require that leave to appeal first be obtained. The Court relied on its own earlier authority, Civil Reference No. 29 of 1997, Sadiq Abdallah Alawi v. Zulekha Suleman Alawi and National Bank of Commerce, which held that the rule-makers could easily have made leave to appeal a prerequisite for a stay of execution but chose not to do so, and that only the notice of appeal is made a prerequisite. Since it was undisputed that the applicant had lodged a valid notice of appeal on 23 September 2004, and the respondent had not challenged its existence or validity, the application for stay of execution was competent. The Court noted that whether an appeal ultimately existed or was properly constituted was a separate question to be resolved at the appropriate time, not at the preliminary objection stage.
The ruling clarifies and reaffirms the principle, consistent with prior Court of Appeal authority (Sadiq Abdallah Alawi), that under Rule 9(2)(b) of the Court of Appeal Rules, 1979, a valid notice of appeal—not leave to appeal—is the prerequisite for the Court to exercise jurisdiction to grant a stay of execution pending appeal. This confirms that applicants need not await the outcome or grant of leave to appeal before seeking a stay of execution, provided a notice of appeal has been properly lodged under Rule 76. The decision is significant for procedural practice in tax and civil appeals, ensuring that parties are not deprived of interim relief merely because a leave application is pending, refused, or struck out, so long as the foundational notice of appeal remains valid and unchallenged.
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