20160616 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KAIJAGE. J.A.. MUSSA. J.A. And MWARIJA. J.A.) CIVIL APPLICATION NO. 148 OF 2014 AIRTEL TANZANIA LTD ......................................................... APPLICANT VERSUS TANZANIA REVENUE AUTHORITY ...................................... RESPONDENT (Application for striking out notice of appeal from the decision of the Tax Revenue Appeals Tribunal at Dar es Salaam) · (Twaib, J.) Dated the 22 nd day of November, 2013 In Tribunal Tax Appeal No. 14 of 2012 RULING OF THE COURT 27th May & 24th June, 2016 MUSSA, J.A.: The respondent was dissatisfied by the decision of the Tax Revenue Appeals Tribunal which was pronounced on the 2fnd November, 2013. In response, she duly filed a Notice of appeal on the 5th December, 2013 which was received and acknowledged by counsel for the applicant on the 6th December, 2013. Thereafter, according to 1 the applicant, the respondent took no further action, hence the application at hand. In effect, the application seeks to move the Court to strike out the respondent's Notice of Appeal on the ground that some essential step in the proceedings has not been taken within the prescribed time. The application is by Notice of Motion which is predicated under Rules 60(2) and 89(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit sworn by Mr. Onesmo Kyauke who held himself as an Advocate of the applicant. In addition, the applicant has lodged written submissions in support of the application. When the application was called on for hearing before us, the applicant was represented by Mr. Makarious Taira, learned Advocate .. The respondent was absent despite being duly served and, accordingly, we ordered the application to proceed in her absence. Mr. Taira fully adopted the Notice of Motion, the accompanying affidavit as well as the written submissions in support of the application. Elaborating the applicant's written submissions, Mr. Taira contended 2 that after lodging the Notice of Appeal, the respondent was notified of the decision of the Tax Revenue Appeals Tribunal in a letter written by the Registrar of the Tribunal and dated the 12th December, 2013. The notification letter, he said, also enclosed the copy of the proceedings, judgment and the decree of the Tribunal. The learned counsel for the applicant informed us that the notification letter is appended to the Notice of Motion which was served upon the respondent on the 16th September, 2014. To this date, Mr. Taira further submitted, the respondent has not instituted the appeal within the prescribed time as required by Rule 90(1) of the Rules and, accordingly, the learned counsel for the applicant urged us to strike out the Notice of Appeal with costs. Having heard the learned counsel for the applicant, it seems clear to us that the respondent was duly served with the Notice of Motion on the 16th September, 2014. Then, a little later, on the 6th November, 2014 the respondent was just as well served with the applicant's written submissions in support of the application. And, yet, for some obscure cause, the respondent adopted a passive stance and made no effort whatsoever to counter the applicant's quest either by way of an affidavit 3 J• in reply or written submission. Thus, to this end, the factual averments as contained in the applicant's affidavit stand uncontested. It is common ground that this application revolves around the question whether or not the respondent is in breach of Rule 90(1) of the Rules which stipulates: - "90.-(1) Subject to the provisions of Rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged with (a) a memorandum of appeal in quintuplicate; (b) the record of appeal in quintuplicate; (c) security for the costs of the appeal, Save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court 4 as having been required for the preparation and delivery of that copy to the appellant. " Unfortunately, on account of the respondent's passiveness, it cannot be ascertained whether or not the respondent wrote the Tribunal Registrar to request for a copy of the proceedings and, if so, whether or not she copied the requesting letter to the applicant to entitle herself to rely on the proviso to Rule (90)(1) of the Rules. That being so and, there being no certificate of delay, it was incumbent upon the respondent to institute the appeal within sixty (60) days from the date when the Notice of Appeal was lodged. As we have already indicated, the Notice of Appeal was lodged on the 5th December, 2013 but, having done so, the respondent did not take any further step and, more specifically, she did not, at all, institute the appeal. As to what results from such inaction, we need do no more than reiterate our observation in the unreported Civil Application No. 4 of 2011 - Olivia Kisinja Mdete Vs Hilda Mkinga: - "The law is now settled, upon lodging a Notice of Appeal, the intending appellant must not sit back but is required to move the process forward by taking essential steps that have 5 been clearly outlined by the Court of Appeal Rules. The applicant was entitled to move the Court under Rule 89(2) to strike out a notice of appeal where no essential steps have been taken beyond that notice. " All said, we find merits in the application which we, accordingly, allow. The Notice of Appeal filed by the respondent is, hereby, struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 16th day of June, 2016. S.S. KAIJAGE JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL I certify that this is a true . I DEPUTY STRAR COURT PEAL 6