Civil Reference No. 7 of 2004
The applicant, Karibu Textile Mills Limited, was aggrieved by a judgment and decree of the Tax Revenue Appeals Tribunal delivered on 8/10/2010 in Tax Appeal No. 12 of 2010. It filed a notice of intention to appeal and lodged Civil Appeal No. 1 of 2011. It later discovered that the copies of the decrees of the Tribunal and the Board included in the record of appeal were not properly signed by the members of those bodies. The applicant applied to withdraw the appeal to file a fresh record with properly signed decrees; the withdrawal was granted on 28/5/2015. It then applied to the Tribunal for extension of time to file a fresh notice of intention to appeal (Application No. 13 of 2016), which was granted on 20/4/2016, and the fresh notice was filed on 25/4/2016. Properly signed copies of the decrees were obtained only on 2/3/2017. The applicant's advocate, who was the sole attorney handling tax matters in her firm, thereafter spent considerable time preparing this application and four other similar applications arising from appeals with the same defect. A previous similar application (Civil Application No. 227 of 2017) was withdrawn on 18/8/2017, the same date this application was filed. The respondent did not file an affidavit in reply, and at the hearing, counsel for the respondent abandoned its written submission and stated it was not resisting the application.
Whether the applicant had demonstrated sufficient (good) cause under Rule 10 of the Tanzania Court of Appeal Rules, 2009 to justify an extension of time to institute an application for stay of execution of the Tribunal's judgment and decree.
The applicant, through Mr. Mayenga and Ms Kinyaka, argued that the delay was caused by two main factors: (1) the need to await proper, signed copies of the Tribunal's and Board's decrees, which were essential documents for both the appeal and the intended stay application, obtained only on 2/3/2017 after withdrawal and refiling of the appeal; and (2) that the applicant's advocate, being the sole practitioner handling tax cases in her firm, was heavily occupied preparing this and four related applications arising from appeals with similarly defective decrees. Counsel relied on Azim Premiji v Attorney General and Dr. Aman Walid Kabourou (No. 1) [1999] TLR 457, Zanzibar Telecom Company Ltd v Haidari Y. Rashid t/a Navarisa Enterprises, Civil Application No. 48 of 2010, and Frank Kibanga v ACU Limited, Civil Appeal No. 24 of 2003, to support the proposition that these factors constituted sufficient cause. The respondent did not file an affidavit in reply, leaving the factual averments uncontested, and although it initially filed a written submission opposing the application on points of law, at the hearing the respondent's counsel abandoned this submission and stated that the respondent was not resisting the application, leaving it effectively unopposed.
The Court granted the application. It held that the advocate being 'too busy' with similar cases did not, by itself, constitute sufficient cause for the delay, citing the South African Labour Appeal Court decision in Allround Tooling (Pty) Ltd v National Union of Metal Workers of South Africa for the proposition that professional overload is not an acceptable explanation for non-compliance with procedural rules. The Court also clarified that Azim Premiji did not support the applicant's argument about counsel's workload, as that case concerned a litigant's right to choose an advocate, not workload as an excuse for delay. However, the Court found that the absence of properly signed decrees was a good cause for the delay, since a copy of the decree sought to be stayed is an essential document required to be included in the record of both an appeal (under Rule 96(1) of the Rules) and an application for stay of execution, as illustrated in Zanzibar Telecoms and Frank Kibanga, where matters were struck out for lack of the requisite decree. Because the existence of a valid appeal was a precondition for an application for stay of execution, and the properly signed decrees were indispensable for both, the delay attributable to obtaining them constituted sufficient cause. The application, being unopposed and supported by good cause, was granted, and the applicant was given fourteen days from the date of the ruling to institute the intended application for stay of execution.
The ruling reinforces that under Rule 10 of the Tanzania Court of Appeal Rules, extension of time will not be granted merely because an application is unopposed; the applicant must still establish good cause for the delay. It clarifies that an advocate's heavy workload or being the sole practitioner handling a category of cases does not, on its own, amount to sufficient cause for delay in complying with procedural timelines, aligning with the principle that practitioners must manage their caseload to meet professional and procedural obligations. Conversely, the decision affirms that unavailability of essential documents—specifically properly signed decrees required under Rule 96(1) for inclusion in the record of appeal and in applications for stay of execution—can constitute good cause for delay, given that such documents are indispensable to both appeals and consequential applications for stay of execution.
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