Twiga Bancorp Limited vs Commissioner General (TRA) (Civil Application No. 241/20 of 2017) [2017] TZCA 1246 (27 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 241/20 OF 2017 TWIGA BANCORP LIMITED .................................. , ................. APPLICANT VERSUS COMMISSIONER GENERAL (TRA) ...................................... RESPONDENT (Application for extension of time to make an application for stay of execution out of time arising from the Judgment and Decree of the Tax Revenue Appeals Tribunal at at Dar es Salaam) (Mataka, Vice Chairman, Doriye, Member and Shimwela, Member) dated the 5t~ day of September, 2013 in Appeal No. 1 of 2013 RULING 11 111 August,.~ 31 st Octobr, 2017 MUSSA, J.A.: ,,, .. •-··•"•'"" ,,, · Th applic:ant seeks extension of time within which to apply for a stay of execution and enforcement of the decision of the Tax Revenue AppeaJ$ . Trib una1 dt;;; bg'._:seffltler; 2arr· Th€ appii~;i~~ is -;; ::;- ; a .- .· ~~.:...·· ":·:.-- ~~-:...~~~:-- _........,..----- ' Notice of Motion which is predicated under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit which was duly sworn by Mr. Wilfred Mkude who happens to be a 1

Principal Officer of the applicant. In addition, the applicant has enjoined written submissions to fortify the application. The application is being resisted by the respondent through an affidavit in reply which was also duly sworn by Gloria Achimpota who held herself up as an Advocate for the respondent. The respondent has ju st as well enjoined written submissions to counter the application. At the hearing before me, the applicant was represented by Ms. Ktiadija Kinyaka, learned Advocate, whereas the respondent had the . . ,,, .. - services of Mr. Marcel Busegano, also learned Advocate. Both learned counsel fully adopted their respective documents either in support of or to counter the application.:•·-····· Expounding the· written' submissions, Ms. Kinyaka contended that, in the immediate aftermath of the decision of the tribunal desired to be impugneq, th~ applicant ·lodQed a· Notice of Appeal on the 24 th September, .. . --- -------------..--..,,.----r-:--· _..,.. , . --------- ·- .. 2.Q-1-3- W·i'h a: vhiw-tocnalleiige the-decTsio·n before this Court. Having filed the Notice, on the 22 nd November, 2013 the applicant lodged Civil Application No. 203 of 2013 through which she sought an order of the Court staying the execution of the decree of the Tribunal. A little later, on 2

the 17 th January, 2014 the applicant lodged a memorandum and record of appeal which instituted Civil Appeal No. 2 of 2014. Whilst the appeal was pending, it came to the applicant's attention that the proceedings, judgment and decree of the Tribunal were invalid for not being signed and certified by all the presiding members of the Tribunal. As it were, the wakeup to the applicant call was sounded on the 20 th March, 2015 by the unreported decision of the Court in Civil Appeal No. 13 of 2011- Midcom Tanzania Limited vs Commissioner General, TRA. Apprehensive that her pend.ing .appeal was heading for a nose-dive, on the 28 th May, 2015 the applicant withdrew it with a view to rectify the Tribunal .. .documents and start afresh. In the meantime,_ the applicant had earlier, on the· 13 th April, 2015 lodged a request to the tribunal to be supplied with duly certified copies of the proceedings,. judgmeot and decree of the Tribunal. As she awaited to

• --- ,..,. ~~ ·-. :;:,b~;:suciidw-itt1c.te::elttfft1ents/lJrr-':th:ez5ttrApril :-the· a pp ritl~ged a fresh Notice of Appeal after she obtained extension of time to do so from the Tribunal. 3

The requested Tribunal documents were finally delivered to the applicant on the 2 nd March 2017, whereupon she lodged the matter at hand on the ist June, 2017. On account of the foregoing backdrop, it was Ms. Kinyaka's submission that the delay in lodging the application for stay of execution of the decree of the tribunal was not occasioned by the applicants negligence or lack of due diligence. To buttress her contention, the learned counsel for the applicant referred us to two decisions, viz- Civil Application No. 2 of 2007 Isginia Limited vs Commissioner Gen_ral, TRA (unreported); and Fourtunatus Masha vs William Shija and Another [1997]TLR 155. On his part, Mr. Busegano, in the main, sought to submit that the ' . ,, :,. -·.. . . Application i; iscbnceived and an abuse of the process of the Court.- If I ud~~st6od hini: w~ll,. the learned counsel's· line of argument was to the effect that having filed the initial application for stay execution, which was 11 Without order (sic) striking out Civil Application No. 203 of 2013 previously filed in the Court the Applicant is now 4

• applying for extension of lime to file another fresh application for stay of execution. This is abuse (sic) of court process with the view to pre-empty (sic) the defectiveness of Civil Application number 203/2013 which was filed without defective documents (sic) including the dee.Tee and other documents which were not signed by individual members of the Tribunal and without their opinions though the said ciocuments were already available when Application No. 203/2013 was filed. Failure to comply was negligence/ ill Intent and lack of due diligence on the . part of . th,e Applicant.. withdrawal of · CivilApjJea/No~ 2/2014 cvuld not cause the collapse of application No. 203/2013 ... // With unfeigned respect to the learned counsel, technically speaking, with the withdrawal of Civil Appeal No. 2 of 2014, the previous application for stay was left with leg to stand on, the more so as for Notice of Appeal, which is a pre-requisite for a stay crumbled with the withdrawa_l. 5

As for the merit of this application, I need only pay homage to what was observed in the· case of Shanti Vs Hindocha (1973] EA 2007:- "The position of an application for extension of time is entirely different from an application for leave to appeal. He is concerned with showing ''sufficient reason" why he should be given more time and the most persuasive reason he can show is that the delay has not been caused or contributed to by dilatory conduct on his part. But there rnay be other reasons and these are all matters of degree. He. does not necessarily have ~ .. ·, · to 5i16w that his appeal has a reasonable prospect of success or even that he has an arguable case. N My.pc1:rtic:μJ9f'.£:_QDC:eti:iwa9cerrthetime Taken to prepare the Notice of .. ·.:.:::..:·.· :.--·--·--· ,-.~-- Motion and its accompanying documents: that is, from the 2 nd March, 2017 when the Tribunal documents were availed to the 1 st June, 2017 when this i application was lodged. Nonetheless, looking at the Notice of motion and j l I. ,. l 6 ' i ~ f\ ·f !

G \ its accompaniments, the same are bulky and, accordingly, the delayed lodgment is excusable. In the result, I find merit in the applications which I hereby grant. Time is hereby extended and the applicant is given leave to file the desired application for· stay of an execution within thirty (30) days from the date of the delivery of this Ruling. Costs to abide by the result in the main cause. DATED at DAR ES SALAAM this 27ui day of October, 2017. K.M. MUSSA JUSTICE OF AJ>PEAL I certify that this is a true copy o the original. . . ·.· ~(, ~ . . --..,, ............ · ..... , •.. --·· -·- --· - -.---,-·· .. · ,l;H. M UMI D.EPUTY REGISTRAR COURT OF APPEAL 7