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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
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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
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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
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(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.
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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
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