Civil Reference No. 7 of 2004
National Microfinance Bank PLC (the applicant) was aggrieved by a judgment of the Tax Revenue Appeals Tribunal dated 17 July 2014, which allowed the appeal in favour of the Commissioner General, TRA (the respondent). The applicant lodged a Notice of Appeal and later filed Civil Appeal No. 86 of 2014, but this appeal was struck out by the Court of Appeal in February 2016 due to defects in the Decree supplied by the Tribunal, which also led to the striking out of the original Notice of Appeal. The applicant then applied for and was granted extension of time to lodge a fresh Notice of Appeal, which it filed in March 2016. It subsequently pursued certified copies of the corrected Decree, which were only supplied on 23 February 2017, and continued to await other necessary documents (exhibits and certificate of delay) to file its Memorandum and Record of Appeal. Meanwhile, the respondent initiated execution of the Tribunal's decree via a Demand Notice dated 11 May 2017. As the applicant had not yet filed its substantive appeal or a stay application, it filed the present application under Rule 10 of the Court of Appeal Rules, 2009, seeking extension of time to file an application for stay of execution of the Tribunal's decision.
1. Whether the affidavit in reply filed by the respondent complied with section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12 R.E. 2002, which requires the jurat to state the date and place at which the affidavit was taken. 2. Whether, in light of the reasons given by the applicant for its delay, sufficient cause had been shown to justify extending time to file an application for stay of execution of the Tax Revenue Appeals Tribunal's decree.
For the respondent, counsel (Mr. Ndarai Kidaya) conceded, upon the Court's own observation, that the affidavit in reply of Yusuf Juma Mwenda omitted the date on which it was sworn, rendering it defective, and consequently did not oppose the grant of the application. For the applicant, counsel (Mr. Seni Malimi) agreed with the Court's observation regarding the defective affidavit and, treating the application as unopposed, urged that the extension of time be granted with no order as to costs. The applicant's supporting affidavit (through Lilian Komwihangiro) detailed a chronology of procedural delays beyond its control, including the striking out of its earlier appeal due to a defective Decree, the time taken to obtain a fresh Notice of Appeal, and prolonged delay by the Tribunal in supplying a corrected Decree and other essential documents (only received in February 2017), which prevented timely filing of the stay application despite the respondent's initiation of execution proceedings in May 2017.
The Court held that the respondent's affidavit in reply was incurably defective for failing to state the date on which it was taken or made, contrary to the mandatory requirement of section 8 of the Notaries Public and Commissioners for Oaths Act, and was therefore of no legal use; as a result, the applicant's affidavit stood unchallenged. On the merits of the extension application, the Court found that the reasons given in the applicant's affidavit—chiefly the Tribunal's protracted delay in supplying a proper Decree and other necessary documents, through no fault of the applicant—constituted good cause for the delay. The Court accordingly allowed the application, granting the applicant 30 days from the date of the ruling to file its application for stay of execution, with each party bearing its own costs.
The decision reaffirms the strict, mandatory nature of section 8 of the Notaries Public and Commissioners for Oaths Act, following the Court's earlier holding in Director of Public Prosecutions v Dodoli Kapufi and Another, that an affidavit's jurat must state the date and place at which it was sworn, and that omission of this detail (or of the jurat, or the deponent's signature) renders the affidavit incurably defective and of no legal effect. It illustrates the Court's willingness to raise such defects suo motu and to treat an opposing affidavit as non-existent where it fails to meet this formal requirement, effectively leaving the applicant's version of facts unchallenged. The case also demonstrates the application of the 'good cause' standard for extension of time under Rule 10 of the Court of Appeal Rules, showing that delays attributable to a tribunal's failure to timely supply essential documents (such as a corrected decree) can constitute sufficient justification for extending time to file procedural applications like a stay of execution.
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