IN THE COURT OF APPEAL OF TANZANIAAT OAR ESSALAAM

CIVIL APPLICATION NO. 245/20 OF 2017

NATIONAL MICROFINANCE BANK, PLC APPLICANT

VERSUS

COMMISIONER GENERAL, TRA RESPONDENT

(Application for extension of time to file an application for stay of executionfrom the judgment of the Tax Revenue Appeals Tribunal

at Oar es Salaam.)

(Hon. Or. Fauz Twaib, Chairman, Prof. J. Doriye,Mr. Kalolo-Bundara, Members)

dated the zo" day of February, 2012in

Income Tax Appeal No.7 of 2011

RULING

28th September & 2nd October, 2017

LUANDA, l.A.:

This is an application for extension of time to file an application for

stay of execution from the decision of the Tax Revenue Appeals Tribunal.

The application has been made under Rule 10 of the Court of Appeal Rules,

2009 (the Rules).

In this application, Mr. Seni Malimi, learned advocate appeared for•

the applicant; whereas the respondent was represented by Mr. Felix Haule,

learned counsel.

,.. At the commencement of hearing of the application, the Court wished

to satisfy itself as to whether the record of the application which contained

inter alia, the notice of motion supported by an affidavit of the applicant

and the affidavit in reply of the respondent were in order. I posed that

question to the parties becausethe affidavit in reply of the respondent has

not shown the date on which the affidavit was taken. I had in mind

section 8 of the Notaries Public and Commissioner for Oaths Act, Cap 12

R.E.2002 (the Act). Mr. Haule readily conceded that their affidavit in reply

is incurably defective as such it is of no use. So, the respondent had

nothing to counter to what has being deponed in the affidavit of the

applicant. The application for extension of time to file an application for

stay of execution may be granted, he submitted. Mr. Malimi first joined

hands with the observation made by the Court. He then prayed the

application for extension of time to file an application for stay of execution

be granted.

As hinted earlier on, the affidavit in reply of the respondent does not

contain the date on which the oath was taken. The omission infringes

section 8 of the Act which is couched in mandatory terms and which reads

as follows:-

"Every Notary Public and Commissioner for Oaths

before whom any oath or affidavit is taken or made

under this Act shall state truly in the jurat of

2

attestation at what place and on what date the

oath or affidavit is taken or mede". [Emphasis

supplied] .

In The Director of Public Prosecutions vs Dodoli Kapufi and

Another, Criminal Appeal No. 11 of 2008 (unreported) this Court stated

that:-

"Total absence of the jurat or omission to show the

date and place where the oath was administered or

affirmation taken or the name of the authority

and/or the signature of the deponent against the

jurat, renders the affidavit incurably detective".

(Emphasis mine).

Since the affidavit in reply does not show the date it was taken, the

same is incurably defective. The purported affidavit is of no use. So, the

affidavit of the applicant is taken to have not been challenged at all.

In the affidavit which is not challenged, the applicant explained the

reasons for the delay as I reproduce hereunder:-

5. That on the 2dh Februsry, 2012, the Tax Revenue Appeal Tribunal

delivered its judgment on appeal and allowed the appeal in favour of

the Respondent herein. Copies of the Proceedings, Judgment and

3

I

Decree of the Tribunal are annexed herewith and marked NMB -2

(a), (b) and (e) respectively, to torm part of this Affidavit.

6. That being aggrieved with the decision of the Tribunal, the Applicant

appealed to the Court of Appeal of Tanzania through Civil Appeal No.

B3 of 2012.

7. That the Applicant had to withdraw her appeal at the Court of Appeal

of Tanzania after discovering that the same was having defects

following the Courts decision in Civil Appeal No. 68 of 2010 -

Mbeya Intertrade Company Limited vs Commissioner General

which directed that accompanying decrees on appeal must be signed

and certified by all members who heard the appeal. A copy of the

Order dated the 2rfh May, 2015 is annexed hereto and marked

Annexture NMB-3, to form part of this affidavit.

B. That fol/owing the withdrawal of the Appeal in the Court of Appeal in

CivilAppeal No. 83 of 2012, its Notice of Appeal was also struck out.

9. That sequel to paragraph B hereinabove, the Applicant, through Tax

Application NO.6 of 201~ applied for extension of time to lodge tJ

notice of Appeal out of time and the same was granted on the jh

March, 2016. The Applicant filed her Notice of Appeal on gh March,

2016. Attached hereto and marked Annexture NMB-4 (a), (b) and

4

(e) are copied of the Proceedings/ Drawn Order and the Notice of

Appeal, to form part of the Affidavit.

1O. That following the lodging of the Notice of Appeel, the Applicant

applied for certified copies of the Decree signed by all members of

the Tribunal. A copy of the said latter is annexed herewith and

marked Annexture NMB-5, to form part of the Affidavit.

11. That after being availed with all necessary documents/ the Applicent.

on the 2ffhApril, 201~ lodged her Appeal before the Court of Appeal

of Tanzania and the same is pending todate. A copy of the

Memorandum of Appeal of Civil Appeal No. 102 of 2017 is annexed

hereto and marked NMB-6/ to form part hereof.

12. That while the appeal is still pending/ the Respondent has initiated an

execution of the Decree of the Tax Revenue Appeals Tribunal in Tax

Appeal No. 7 of 2011. Through its Demand Notice dated 1fh May/

201~ the Respondent has threatened stern measures against the

Applicant if the said notice is not heeded. A copy of the said Demand

Notice is annexed hereto and marked Annexture NMB-7. Leave 'is

craved it forms part hereof.

5

13. That the delay in filing of the application for stay of execution of the

decree of the Tax RevenueAppeals Tribunal has been caused by the

reasons beyond the Applicants control in that:

(a) A proper decree of the Tax RevenueAppeals Tribunal was not

supplied to the Applicant until I" March, 2017. The earlier

decree supplied was defective and led to the striking out of Civil

Appeal No. 83 of 201.

I have carefully gone through the reasons contained in the affidavit. I am

satisfied in terms of Rule 10 of the Rules that the reasons for the delay as

shown above constitute good cause. I accordingly allow the application for

extension of time to file the application for stay of execution. The same to

be filed within 30 days from the date of delivery of this ruling.

Each party to bear its costs.

It is so ordered.

DATED at DAR ES SALAAM this 29th day of September, 2017.

B. M. LUANDAJUSTICE OF APPEAL

I certify that this is a true copy of the original.

,-P.~IKYA

SENIOR DEPUTY REGISTRARCOURT OF APPEAL

6