Civil Reference No. 7 of 2004
African Barrick Gold Mine Plc, a UK-incorporated company with several Tanzanian business entities (including Bulyanhulu Gold Mine Ltd, North Mara Gold Mine Ltd and Pangea Minerals Ltd), was registered by the Tanzania Revenue Authority and issued a Tax Identification Number and VAT Registration number. Following a tax audit covering 2010-2013, the Commissioner General issued a tax demand notice dated 8th October 2013 for withholding taxes, stamp duty, SDL and PAYE, including a demand of USD 81,843,127 in withholding tax on dividend payments. The appellant challenged the notice before the Tax Revenue Appeals Board, which dismissed the appeal, holding the appellant was a resident company liable to the taxes demanded. The appellant then appealed to the Tax Revenue Appeals Tribunal, which agreed with the Board and dismissed the appeal. The appellant then lodged a further appeal to the Court of Appeal of Tanzania under section 25 of the Tax Revenue Appeals Act. Before hearing the merits, the Court raised suo motu the question of whether the appeal was properly constituted, having noted that the record of appeal omitted the documentary exhibits tendered at trial (18 exhibits from the appellant and 20 from the respondent) as well as the Tribunal members' written opinions.
Whether the appeal to the Court of Appeal was competent given the appellant's failure to include in the record of appeal core/mandatory documents required under Rule 96(1) and (2) of the Tanzania Court of Appeal Rules, 2009 — specifically the documentary evidence (exhibits) tendered before the Tax Revenue Appeals Board, which formed the sole evidentiary basis for the impugned judgments of the Board and the Tribunal.
The appellant, through counsel, conceded that the record of appeal did not contain all the documentary evidence tendered at trial, which was in fact the only evidence upon which the Board's and Tribunal's judgments were premised. Counsel for the appellant left the matter to the Court's discretion to decide the fate of the appeal in light of this non-compliance. The respondent, through counsel, urged the Court to be consistent with its settled jurisprudence and non-discriminatory in applying the rules, and pressed that the appeal be held incompetent and struck out, though he did not press for costs.
The Court of Appeal held that the omission to include the documentary evidence tendered at trial in the record of appeal violated the mandatory provisions of Rule 96(1)(f) and (2) of the Tanzania Court of Appeal Rules, 2009. The Court found that such documentary evidence constituted core or primary documents essential for the proper and conclusive determination of the appeal, since the Board's and Tribunal's decisions were based entirely on this documentary evidence and no oral testimony was given by the parties (save a single Board witness). Relying on a long line of its own precedents (including Ngoni-Matengo Co-operative Marketing Union Ltd v. Ali Mohamed Osman, Kiboro v. Posts and Telecommunications, Royal Insurance Tanzania Ltd v. Kiwengwa Strand Hotel Ltd, Amir (Tanzania) Ltd v. OTTU, Haruna Mpangaos v. Tanzania Portland Cement Co. Ltd, Dodsal Hydrocarbons and Power Tanzania Ltd v. Hasmukh Bhagwanji Masrani, Mining Agriculture & Construction Service Ltd v. Paleman Construction Ltd, and Mariam Idd v. Abdulrazack Omary Laizer), the Court reiterated that failure to include mandatory/core documents in the record of appeal is not a mere procedural defect but goes to the jurisdiction of the Court and renders the appeal incurably incompetent. Accordingly, the Court declined to entertain the appeal on its merits and struck it out for incompetence, without an order as to costs (as the respondent's counsel did not press for costs).
The judgment reaffirms and consolidates the Tanzanian Court of Appeal's settled and stringent jurisprudence that non-compliance with the mandatory requirements of Rule 96(1) and (2) of the Court of Appeal Rules — particularly omission of core documents such as documentary evidence/exhibits relied upon by lower tribunals — is a jurisdictional defect rendering an appeal incurably incompetent, not a mere curable procedural irregularity. It underscores that the selection of documents for inclusion in the record of appeal is not discretionary for the appellant, except where formally excluded under Rule 96(3). The decision also illustrates the Court's practice of raising competency of an appeal suo motu before proceeding to the merits, and its consistent application of this principle regardless of the significant substantive tax dispute (involving USD 81,843,127) that the appeal sought to raise, thereby emphasizing strict adherence to procedural rules governing the constitution of the record of appeal in tax and other original-jurisdiction appeals.
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