Misc Application No. 77 of 2022
In Civil Case No. 38 of 2000 in the High Court of Tanzania at Arusha, judgment was entered against the applicant, Tanzania Revenue Authority (TRA), in favour of the respondent, Tango Transport Company Ltd. TRA appealed timely to the Court of Appeal (Civil Appeal No. 83 of 2004), but that appeal was struck out because a second certificate, improperly issued and titled a 'supplementary certificate', rendered the appeal incompetent. Following the striking out, TRA applied to the High Court for extension of time to file a fresh notice of appeal, but that application was dismissed. TRA then issued a notice of appeal against the High Court's refusal, but withdrew it upon realising the procedure adopted was improper. TRA subsequently filed the present application under Rules 3(2)(a), 8 and 44 of the Court of Appeal Rules, 1979, seeking (1) extension of time to apply for leave to file a notice of appeal out of time, and (2) leave to file the notice of appeal out of time. The application was supported by affidavits deposing, among other things, that the root cause of the procedural defect was the Registrar's issuance of uncertified, unmarked or improperly marked exhibits and documents, and that the ruling of the High Court refusing extension was itself received late (12 August 2006), with the application before the Court of Appeal filed on 12 October 2006. No counter-affidavit was filed by the respondent.
Whether the applicant had shown sufficient cause for the delay in filing the application, justifying the Court's exercise of discretion under Rule 8 of the Court of Appeal Rules to extend time for the applicant to apply for and obtain leave to file a notice of appeal out of time.
The applicant, through Mr Kalolo and Dr Fauz, argued that the striking out of the earlier appeal resulted from inadvertence by the Court and counsel (an improper 'supplementary certificate'), that a technical striking out should not deny a party its right of appeal (citing Fortunatus Masha v William Shija, Tanganyika Cheap Store v National Insurance Corporation, and Standard Bank (Tanzania) Ltd v Jayant Patel & Rozina Patel), that counsel's mistake should not prejudice the client (citing the Kenyan case Mariaria and Others v Matundura), that the applicant acted promptly by continuously pursuing available remedies (citing Michael Kweka v John Eliafye), and that since no counter-affidavit was filed, the facts deposed stood unchallenged. The applicant also contended there was a strong point on appeal, namely that the High Court lacked jurisdiction because the underlying claim originated from tax matters properly falling under the Tax Tribunal, and that the respondent would suffer no prejudice if the application were granted. The respondent, through Mr Sang'ka, argued that the High Court judge had already exhaustively considered and rejected the inadvertence argument, finding advertence and dilatoriness on the applicant's part; that applicant's counsel was careless in not knowing the proper procedure and documents required for the earlier appeal; that the applicant did not act promptly, having waited from 12 August 2006 (when the High Court ruling was delivered) until 12 October 2006 to file the present application, and that withdrawing an erroneously filed notice of appeal did not excuse this delay but reflected negligence; and that the jurisdictional issue was baseless because the suit was purely for damages, unrelated to taxation.
The Court granted both prayers in the notice of motion, extending time for the applicant to apply for leave to file a notice of appeal out of time and granting leave to file the notice of appeal out of time, with no order as to costs. The Court reasoned that under Rule 8, the applicant needed to show sufficient reasons for the delay, a discretionary and fact-dependent inquiry requiring the Court to act judiciously. It found that the entire problem originated from the Registrar's issuance of uncertified, unmarked or improperly marked exhibits and documents, a fact left unchallenged since the respondent filed no counter-affidavit. The Court held that denying the application would effectively penalise the applicant for a mistake committed by the Court itself, causing grave injustice and undermining the applicant's constitutional right under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 to appeal against a High Court decision. Although the Court acknowledged that the applicant also bore some blame for not acting promptly after receiving the defective documents, it concluded that denying the right of appeal on that basis would be unjust, particularly because the Court, as source of the original error, would bear no consequence while the applicant would suffer substantial loss. Invoking Article 107A of the Constitution, the Court emphasised that its role is to dispense justice, not to deny it due to the judiciary's own mistakes.
The ruling reinforces the principle that a court should not penalise a litigant for procedural defects or errors attributable to the court's own administrative processes (here, the Registrar's improper certification of documents), particularly where doing so would deprive a party of its constitutional right to appeal under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. It underscores that the discretion to extend time under Rule 8 of the Court of Appeal Rules is to be exercised judiciously and contextually, weighing the interests of justice against strict compliance with procedural timelines, especially where the failure to comply was substantially caused by court error rather than solely by the applicant's own inaction. The decision also illustrates the application of Article 107A of the Constitution, emphasising that courts must dispense justice rather than deny it on technical or self-inflicted procedural grounds.
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