Civil Reference No. 7 of 2004
The applicant, M/s Skylink Travels & Tours (T) Limited, filed Civil Application No. 179 of 2006 seeking a stay of execution of a decision rendered by the Tax Revenue Appeal Tribunal (Shangwa, J.) dated 26th May 2006 in VAT Appeal No. 1 of 2006. While this application was pending, the applicant was also pursuing a related substantive appeal, Civil Case No. 8 of 2007, before the Court. In that related appeal, the respondent, the Commissioner General of the Tanzania Revenue Authority, raised a preliminary objection contending that the appeal was incompetent for want of a properly signed decree. By letter dated 22nd August 2007, the applicant's advocate, Mr. M. J. Lugaziya, notified the Court that the applicant was conceding to this preliminary objection, thereby accepting that the underlying appeal (Civil Case No. 8 of 2007) was incompetent.
The central issue before the Court was whether the application for stay of execution could be sustained once the applicant had conceded that the substantive appeal, upon which the stay application was premised, was incompetent for want of a properly signed decree.
The applicant, through its advocate, did not resist the preliminary objection raised by the respondent in the related appeal; instead, counsel voluntarily conceded the objection and informed the Court of this concession by letter. The respondent's counsel, Mr. Teemba (who also held brief for the applicant's counsel at the hearing), did not advance substantive arguments opposing the application beyond noting the concession, and specifically declined to pray for costs, acknowledging that it was the applicant's own counsel who had drawn the Court's attention to the defect voluntarily.
The Court, per Kaji, J.A., held that once the applicant had conceded that the underlying appeal (Civil Case No. 8 of 2007) was incompetent for want of a properly signed decree, the application for stay of execution had "no legs upon which to stand." The application was therefore itself incompetent and was struck out accordingly. On the question of costs, the Court ordered that each party bear its own costs, taking into account that the applicant's counsel had raised the fatal defect of his own volition rather than the respondent having to expose it through contested litigation.
This ruling illustrates the principle that an application for stay of execution is not free-standing but is contingent upon the existence of a valid and competent underlying appeal. Where the substantive appeal is conceded or found to be incompetent—here, for want of a properly signed decree—any ancillary application for stay of execution tied to that appeal must equally fail as incompetent. The case also demonstrates the Court's practice of not penalizing a party in costs where counsel candidly and voluntarily brings a jurisdictional or procedural defect to the Court's attention, rather than requiring the opposing party to expend effort contesting the point.
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