Civil Reference No. 7 of 2004
The applicant, Vodacom Tanzania Public Company Limited, sought to appeal against a decision of the Tax Revenue Appeals Tribunal dated 6th April 2011 in Tax Appeal No. 17 of 2010. Immediately after that decision, the applicant lodged an appeal to the Court of Appeal (Civil Appeal No. 13 of 2011). However, on 20th March 2015, before the appeal could be heard, it was struck out for being incompetent because the drawn order from the Tribunal was signed only by the Vice Chairman and not by the other members. The order striking out the appeal was served on the applicant on 15th February, 2015. The applicant then made follow-ups with the Tribunal to obtain proper copies of the Judgment and Decree, but these were not supplied until 11th October, 2019. Upon receipt, the applicant prepared and lodged the present application for extension of time on 28th October, 2019, under Rule 10 of the Tanzania Court of Appeal Rules, 2009, supported by an affidavit of Sylivanus Mayenga, advocate. The application was not contested by the respondent, and hearing proceeded ex parte under Rule 63(2) of the Rules as the respondent did not enter appearance.
Whether the applicant had shown 'good cause' under Rule 10 of the Tanzania Court of Appeal Rules, 2009, to justify the grant of an extension of time within which to lodge a fresh appeal against the Tribunal's decision, given the delay caused by the striking out of the original appeal and the subsequent delay in obtaining proper copies of the Judgment and Decree.
The applicant, through learned counsel Ms. Hadija Kinyaka, argued that the delay was not attributable to its own negligence but was a 'technical delay' arising from circumstances beyond its control—namely, the defect in the Tribunal's drawn order (lack of signatures from all members) which led to the striking out of the original timely-filed appeal, and the subsequent lengthy delay by the Tribunal in supplying proper copies of the Judgment and Decree (from February 2015 to October 2019). Counsel relied on the Court's decision in Fortunatus Masha v. William Shija and Another [1997] T.L.R 154, which drew a distinction between 'real or actual delays' and 'technical delays,' holding that where an original appeal was lodged in time but found incompetent for technical reasons, and a fresh appeal had to be instituted, extension of time ought to be granted, especially where the applicant acted promptly after the striking out. The respondent, Commissioner General (TRA), did not contest the application and did not enter appearance at the hearing, resulting in the matter proceeding ex parte; thus no counter-arguments were advanced on the respondent's behalf.
The Court (Levira, J.A.) held that the applicant had advanced good cause for the delay in lodging the appeal, justifying an extension of time under Rule 10 of the Rules. The Court found that the delay was not due to the applicant's negligence but arose from defects in the Tribunal's Judgment and Decree (failure of all members to sign) which were beyond the applicant's control, and from the Tribunal's delay in supplying proper copies of these documents. Accordingly, the Court granted the application and allowed the applicant sixty days from the date of the Ruling within which to file its appeal.
The ruling reaffirms and applies the principle established in Fortunatus Masha v. William Shija and Another [1997] T.L.R 154, distinguishing between 'technical delays' and 'real or actual delays' for purposes of extension of time applications under Rule 10 of the Tanzania Court of Appeal Rules, 2009. It illustrates that where an appellant has acted diligently by lodging an appeal within time, but the appeal is later struck out due to a defect attributable to the tribunal below (such as improperly signed orders) rather than the appellant's own fault, and further delay results from the tribunal's failure to promptly supply corrected documents, such circumstances constitute good cause warranting extension of time. The case underscores the Court's willingness to grant relief where delay stems from institutional or procedural defects outside the applicant's control, rather than from the applicant's own inaction or negligence.
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