Civil Appeal No. 620 of 2023
The applicant, Karibu Textile Mills Limited, was involved in a VAT assessment dispute with the Commissioner General (TRA). The Tax Revenue Appeals Board ruled in the applicant's favour, but the Commissioner General successfully appealed to the Tax Revenue Appeals Tribunal, which reversed that decision on 08.10.2010. The applicant then lodged an appeal to the Court of Appeal, but withdrew it on 21.04.2015 after the Court's decision in Midcom Tanzania Limited v. Commissioner General (TRA) held that Tribunal proceedings and decrees were invalid unless signed and certified by the chairman/vice-chairman and all presiding members. The applicant then sought and obtained leave to lodge a fresh Notice of Appeal out of time (lodged 25.04.2016). While awaiting properly signed decrees, the Court's ruling in G.S Contractors Limited v. Commissioner General (TRA), Civil Appeal No. 80 of 2015, required a certificate on a point of law for such appeals (treated as third appeals); the applicant obtained this certificate on 31.05.2016. That decision was later varied on review in Civil Application No. 155 of 2016, clarifying that such appeals were second appeals not requiring a certificate. The applicant also had to respond to African Barrick Gold Mine Plc v. Commissioner General (TRA), which held that omission of documents listed under rule 96 of the Court of Appeal Rules rendered a record of appeal incomplete; the applicant sought opinions of Board/Tribunal members and certified exhibits, receiving a signed decree on 22.03.2017 and certified exhibits on 27.03.2017. The applicant then filed the present application for extension of time on 27.04.2017, one month after completing these compliance steps.
Whether the applicant demonstrated good cause, including a full and satisfactory explanation for every day of delay, sufficient to warrant the Court's exercise of discretion under rule 10 of the Tanzania Court of Appeal Rules, 2009 to extend time for lodging the memorandum and record of appeal.
The applicant argued that good cause existed for extension of time because the original appeal had been lodged within time but was withdrawn only after the Court's ruling in Midcom rendered it defective; thereafter the applicant diligently pursued compliance with successive Court of Appeal decisions (Midcom, Civil Appeal No. 80 of 2015, Civil Application No. 155 of 2016, and African Barrick Gold Mine) to ensure the intended appeal would not be procedurally defective. The applicant 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 support the proposition that extension of time is a discretionary matter to be exercised judicially based on the circumstances of each case, and prayed that the application be allowed with costs to abide the result of the intended appeal. The respondent's counsel conceded to the application and withdrew the only paragraph in the affidavit in reply that had contested the applicant's affidavit, leaving the application effectively unchallenged; the respondent advanced no arguments opposing the application on the merits.
The Court of Appeal (Mwambegele, J.A.) dismissed the application, holding that despite the respondent's concession, the Court remained obliged to satisfy itself that good cause had been shown, as concession by a respondent does not exonerate an applicant from demonstrating good cause. The Court accepted that the applicant had adequately explained the delay caused by compliance with the decisions in Midcom and Civil Appeal No. 80 of 2015/Civil Application No. 155 of 2016, as these represented genuine new developments in the law. However, it doubted that African Barrick Gold Mine excused further delay, since the rule 96 requirement regarding documentary evidence had already been settled by prior 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 failed entirely to explain the one-month delay between receiving certified exhibits on 27.03.2017 and filing the application on 27.04.2017. Citing the settled principle that every day of delay must be accounted for (Bushiri Hassan v. Latifa Lukio Mashayo; Ratnam v. Cumarasamy; Godwin Ndewesi and Karoli Ishengoma v. Tanzania Audit Corporation; Dr. Ally Shabhay v. Tanga Bohora Jamaat), the Court held that mere diligence in pursuing compliance with Court of Appeal decisions was insufficient where a subsequent unexplained delay existed. Consequently, the applicant failed to establish good cause, and the application for extension of time was dismissed, with no order as to costs given the respondent's concession.
The ruling reaffirms the strict and consistently applied principle in Tanzanian appellate practice that an applicant seeking extension of time under rule 10 of the Court of Appeal Rules must account for every single day of delay, and that even substantial diligence in complying with evolving jurisprudence does not excuse an unexplained residual period of delay. It also clarifies that a respondent's concession to an application for extension of time does not relieve the Court of its duty to independently assess whether good cause has been shown, underscoring that such discretion is judicial rather than automatic. The case further illustrates the practical difficulties litigants face when appellate procedural requirements shift due to intervening Court of Appeal decisions (as with Midcom, G.S Contractors, and African Barrick Gold Mine), while emphasizing that only genuinely new legal developments—rather than already-settled principles—can justify delay in complying with procedural rules.
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