20180614 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 417 /20 OF 2017 KARI BU TEXTILE MILLS LIMITED ........................................ APPLICANT VERSUS COMMISSIONER GENERAL (TRA) ..................................... RESPONDENT (Application for extension of time to make an application for stay of execution arising from the Judgment and Decree of the Tax Revenue Appeals Tribunal at Dar es Salaam) (Mataka, Vice Chairperson) dated the 8 th day of October, 2010 in Tax-Appeal No. 12 of 2010 ;:. RULING 28th May & 20th June, 2018 MWARIJA, l.A.: The applicant, Kari.bu Textile Mills Limited bas applied for -an order granting it extension of time to institute an application for stay of execution of the judgment and the decree of the Tax Revenue Appeals Tribunal (the Tribunal) in Tax Appeal No. 12 of 2010. The application, which was brought under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), is supported by the · affidavit of Hadija Kinyaka, advocate. At the hearing of the application on 28/5/2018, the applicant was represented by Mr. Sylivanus Mayenga who was later joined by Ms Hadija 1 Kinyaka, learned advocates. On its part, the respondent was represented by Mr. Harold Gugami, learned counsel. In· arguing the application, Mr. Mayenga adopted the applicant's .,:. written submission filed in support of the application on 27/10/2017. Relying on the factors stated in the written submission and the supporting. affidavit, Mr. Mayenga urged the Court to grant the application contending that the stated factors constitute sufficient cause for the delay in instituting the intended application. According to the affidavit and the written submission, the decision of the Tribunal was delivered on 8/10/2010. The applicant was aggrieved by the decision and thus on 15/10/2010, it filed a notice of intention to appeal and consequently "lodged in this-eourt, eivil-Appeai-No. -i ·of 2011. At a later date after institution of that appeal, the applicant realized that the copies of the decree of the Tribwnal and the Board (the Decrees), which were included in the filed record of appeal, were not properly signed. They were not signed by the members of the Tribunal and the Board respectively. As a result, the applicant applied to withdraw the appeal with a view of filing a record consisting of the properly signed Decrees. The Court granted the application on 28/5/2015 and marked the appeal withdrawn. 2 Having withdrawn the above stated appeal,: the applicant filed in the Tribunal, Application No. 13 of. 2016 applying ·for extension of time to lodge a fresh notice of intention to appeal to the Court out of time. The application was granted on 20/4/2016 and on 25/4/2016, the applicant filed the notice in the Court. Thereafter, the applicant sought, and on 2/3/2017, it obtained the properly signed copies of the Decrees. It is the applicant's contention further that after having obtained the properly - signed decrees, its learned counsel, who was the only attorney dealing with tax cases in her firm, spent a considerable time in drafting and filing, not only this application which was filed on: 18/9/2017, but other four applications arising from the appeals whose records had a similar problem of containing defective decrees. -- + - ~ - -- - ••• Previously however, the applicant had instituted a similar application, Civil Application No. 227 of 2017 but the same was withdrawn on 18/8/2017, the date on which the present application was filed. It was Mr. Mayenga's submission that the above stated factors caused the delay in filing the intended application for stay of execution. Adding to what was submitted by Mr. Mayenga, Ms Kinyaka stated that,. the intended application for stay of execution was supposed to be filed within 60 days from the date of institutional of the notice of appeal. She argued however that, following the withdrawal of Civil Appeal No. 1 3 of 2011 on the basis of the above stated reason, the applicant had to await for_ completion of the process of fiHng,the appeal afresh; after obtaining the properly signed Decrees. According to the learned counsel, the Decrees were necessary for filing . appeals and the relevant applications for stay of execution. She pointed _out that, the nature of the defect in the Decrees involved other four appeals, and as a result, she spent a lot of time in recompiling the records of those appeals and in preparing this application and those which arose from the other appeals. The respondent did not file an affidavit in reply. For this reason; matters of facts stated in the affidavit filed in support of the application were not countered. The respondent could therefore oppose the appl-ication on matters ef law enly; To--tr.at- effeet, -oA---7/-11-/20-1-1' --the respondent filed its written submission in reply to the applicant's written submission. When he appeared in Court however, Mr. Gugami abandoned the reply submission stating that the respondent was not resisting the application. Obviously therefore, the application stood unopposed. Notwithstanding the fact that the application was not opposed, under Rule 10 of the Rules, an application for extension of time may only be granted upon establishment by the applicant, of a good cause for the delay. As stated above, the applicant has relied on two main factors; firstly • ., t t 4 that it was waiting to be supplied with the copies of the Decrees and secondly, that the learned counsel for the applicant was too busy as she was at the material time, the only advocate handling tax cases in her firm. In support of his submission that the two factors constitute sufficient cause for the delay, Mr. Mayenga supplied three decisions of the Court as authorities for his proposition - Azim Premiji v Attorney General and Dr. Aman Walid Kabourou (Number 1) [1999] TLR 457, Zanzibar Telecom Company Ltd v Haidari Y. Rashid t/a Navarisa Enterprises, Civil Application No. 48 of 2010 and Frank Kibanga v. ACU Limited, Civil Appeal No. 24 of 2003 (both unreported). With respect to the learned counsel, the second factor which he relied upon does not constitute· a sufficient cause. The Labour Appeal Court of South Africa stated as follows in the case of Allround Tooling (Pty) Ltd v National Union of Metal Workers of South Africa, case No. DA 2/97 (www.Saflii.org/za/cases/ZALAC/1998/8: ''It is not an acceptable explanation for delay that a practitioner is too busy. If the nature or size of a practitioner's practice renders it impossible for him to render a professional service and to comply with the provision of the Labour Appeal Court rules he must not take on the work. ... " 5 r.,., I subscribe to the above stated position and· hold a view that the same applies when it comes to compliance with our •Rules. With regard to the case of Azim Premiji (supra) cited by Mr. Mayenga, the point at issue relied upon by the learned counsel, does not relate to his argument that preparation by an advocate, of many cases of a similar nature, constitute a good cause for a delay. What was underscored by· the Court in that case, is the person's right of being represented by an advocate of his choice. The Court had this to say:- "The right to defend one's case and the choice of an advocate to do this is unconditional. These two rights cannot depend on the willingness of an advocate to withdraw from the case. A client has an unfettered right to dismiss an -advocate;J(_ With regard to Zanzibar Telecoms case (supra) however, the same is supportive of the submission by the applicant's counsel that, a decree which is sought to be stayed, must be included in the record of the application. In that case, the application was struck out for want of a copy of the decree sought to be stayed. It is equally trite law that, a copy of a decree against which an appeal has been preferred, is one of the essential documents which, under Rule 96 (1) of the Rules, must be included in the ·record of appeal. ·n is 6 on the basis of the above stated position that, in the case of Frank Kibanga (supra) cited by the applicant's counsel, the appeal was struck out for the appellant's failure to include a copy thereof. In the circumstances, since the Decrees were necessary for institution of the intended application for stay of execution and similarly, for the appeal which was preferred against the decision of the Tribunal, the delay was due to a good cause. Existence of the appeal was necessary because an application for stay of execution of a decree .is entertainable where an appeal exists against such a decree. For the foregoing reasons, this application which was not opposed, is hereby granted. The applicant is granted extension of time to institute the intended application for stay of execution within fourteen (14) days from the date of delivery of this ruling. DATED at DAR ES SALAAM this 14th day of June, 2018 .. A.G. MWARIJA JUSTICE OF APPEAL I certify th~t this is a true copy of the original. A.H.M UMI DEPUTY REGISTRAR COURT OF APPEAL ' 7