The Commissioner of Income Tax v. Tarmal Industries Limited Misc. Civ. App. 6-DSM-71, 20/6/71, Mwakasendo, Ag. J.

The Commissioner of Income Tax v. Tarmal Industries Limited Misc. Civ. App. 6-DSM-71, 20/6/71, Mwakasendo, Ag. J.

The Commissioner General of Income Tax, the appellant in Misc. Civil Appeal No. 6 of 1971, applied to the court for an order under 0.39 Rule 19 of the Civil Procedure Code 1966, for re-admission of an appeal dismissed for default. The application was resisted by the respondent company, Tarmal Industries Ltd., on two major grounds: (a) that the application is incompetent on account of its being time barred by virtue s. 3(1), Law of Limitation Act, 1971, and Part 111, item 9, First Schedule to the act; and (b) that no sufficient cause has been shown by the applicant / appellant for his non-appearance on the date when the appeal was called for hearing, to warrant this court to exercise its discretion under rule 19 of order 39.”

            Held: (1) Construing paragraph (c) of section 43, Law of Limitation Act with the aid of section 2, I think there and be little doubt that this application by the Commissioner General of Income Tax is a “proceeding by the Government for the recovery of tax”. It would follow therefore, that the provisions of the Law of limitation Act, 1971, do not affect or apply to the present proceedings instituted by the Commissioner General o Income Tax. The result of this finding is that respondent Counsel’s first argument fails.” (2) “It would seem to me ….. That for a party to prove that some sufficient cause prevented his appearance when his case was called on for hearing, he must show that his failure to act in the matter was caused by some agency extraneous to his will. In the instant case, there is nothing to indicate that the appellant was prevented from instructing his advocates in good time before the case was called or for hearing by some agency extraneous to his will. His default to appear was in my view due solely to his own inaction or dilatoriness. And in this circumstance I do not think it would be right to say that he was prevented from appearing by “sufficient cause”. He merely prevented himself and that tin my opinion cannot amount to a “sufficient cause” for non-appearance at the hearing of the case.” (3) “Further, learned Counsel for the appellant has invited me

Consider the comparatively large amount of tax that would be lost as a result of an adverse ruling, and to say that, because of this, perhaps some extra indulgence should be extended to him. But I do not think that would be either proper or just to do. As my learned brother the late Mamlyn, J. said in the case of Commissioner General of Customs & Excise vs. Tarmal Industries Ltd. (EACA) Misc.  Civil Case Application No. 12 of 1963, “……. I do not consider that it would be in any way proper to extend latitude on such grounds to a Community litigant which would be withheld from a private application and the matter must be decided purely upon the merits of the application, and upon whether “sufficient reason” has been shown ……..” With respect  I find myself in complete agreement with these remarks by my late learned brother Hamlyn, J. Were this court to bend the Civil  Procedure rules, as I am invited to do by the learned Council for the applicant on the sole ground that the applicant, a public institution, would stand to lose a substantial sum in tax if an adverse ruling is handed out, I feel that I would be setting a dangerous precedent which would in the long run nullify the very provisions of the law I am required to administer ……. I have not the slightest doubts in my mind that neither the comparatively large sum of money involved in this case nor the fact that the litigant is the community, should in any way enter into consideration of the basic question whether or not the appellant/applicant was “prevented by sufficient cause” form showing an appearance on the 16^th day of September, 1971”. (4) “While the question whether the appeal in fact involves any significant point of law or not, must remain the subject of considerable argument, I cannot see how the importance or otherwise of the legal issues arising out of the appeal, have anything to do with the question whether or not the applicant was “prevented by sufficient cause” from  appearing on the date fixed for the hearing of the appeal … In any case, I would find it hard on the facts of this case to hold that the legal points at issue were such as to constitute “sufficient cause” for applicant’s default of appearance on the 16^th day of September 1971.” [Citing: The Commissioner of Transport v. The A. G. of Uganda, (1959) E.A. 329]. (5) “In conclusion therefore, I am satisfied that the applicant/appellant has failed to prove to my satisfaction that he was prevented by any “sufficient cause” from appearing when his appeal was called on for hearing on the 16^th day of September, 1971. This application is accordingly dismissed with cost.”