Civil Reference No. 7 of 2004
The respondent, JSC Atomredmetzoloto (ARMZ), a Russian-registered company, entered into an arrangement in 2010 to purchase shares from an Australian company, Mantra Resources Limited, which held shares in Mantra Tanzania Limited, a company engaged in uranium exploration at the Mkuju River Project. The Tanzania Revenue Authority (TRA) sought to levy stamp duty on this share-purchase arrangement, asserting the respondent had a source of income in Tanzania and was liable to tax. After an exchange of correspondence, the respondent appealed to the Tax Revenue Appeals Board, which ruled in its favour, holding it was not subject to Tanzania's tax regime. The TRA's subsequent appeal to the Tax Revenue Appeals Tribunal was dismissed on 18/12/2013, the Tribunal finding that the share-purchase transaction did not relate to property in Tanzania so as to attract stamp duty. The TRA's first appeal to the Court of Appeal (Civil Appeal No. 16 of 2014) was struck out on 19/02/2016 for being supported by a defective decree. The TRA then obtained an extension of time from the Tribunal and filed a fresh notice of appeal on 11/03/2016. It applied for a copy of proceedings on 16/03/2016 (received 27/02/2017) and eventually lodged the memorandum and record of appeal on 27/04/2017, giving rise to Civil Appeal No. 100 of 2017. The respondent opposed the fresh appeal on several grounds, including a preliminary objection that it was time-barred.
(1) Whether Civil Appeal No. 100 of 2017 was instituted within the sixty-day limitation period prescribed by Rule 90(1) of the Tanzania Court of Appeal Rules, 2009, counted from the date of lodging the fresh notice of appeal. (A subsidiary question the Court raised but left undetermined was whether the Tax Revenue Appeals Board had jurisdiction to entertain the respondent's original appeal absent a prior objection to the Commissioner General under sections 7, 7A, 12, 14(2), 16(1) and (3) of the Tax Revenue Appeals Act.)
For the respondent, Mr. Bhojan argued that the five-day period between the filing of the fresh notice of appeal (11/03/2016) and the appellant's request for a copy of proceedings (16/03/2016) should count towards the sixty-day period under Rule 90(1). He contended that once this period was included, the appellant's filing on 27/04/2017 exceeded the prescribed sixty days, rendering the appeal incompetent, and relied on Joseph Mhina Msumari v. Mkurugenzi Mtendaji One Stop Co. Ltd. and Maneno Mengi Limited and Others v. Farida Said Nyamachumbe and the Registrar of Companies to support the proposition that late filing renders an appeal time-barred. For the appellant, Mr. Switi did not directly rebut the time-bar argument; instead he challenged the competence of the original Board proceedings, submitting that the respondent's appeal to the Board (Appeal No. 27 of 2011) was defective because it was not preceded by a mandatory Notice of Appeal to the Board as required by Rule 4(1) of the Tax Revenue Appeal Board Rules, 2001, and that this notice, recognised as material under Rule 7 of those Rules, was never served on the appellant.
The Court of Appeal held that the appeal was time-barred and struck it out. It found that although the appellant filed the memorandum and record of appeal fifty-nine days after receiving the copy of proceedings from the Tribunal's Registrar, the appellant had failed to account for the five days between the filing of the fresh notice of appeal (11/03/2016) and the request for the copy of proceedings (16/03/2016). The Certificate of Delay obtained by the appellant excluded only the period from 16/03/2016 to 27/02/2017, leaving those five days uncovered and thus counted against the sixty-day limitation period under Rule 90(1) of the Court of Appeal Rules, 2009. Adding the unaccounted five days brought the total to sixty-four days, exceeding the prescribed sixty-day period. The Court reaffirmed that an appellant whose earlier appeal was struck out must strictly remain within the prescribed sixty days after filing a fresh notice of appeal before instituting a new appeal, citing Henry William v. Anyigulile Mwasomola for the principle that failure to institute an appeal within the prescribed sixty days renders it incompetent. Consequently, the appeal was struck out, with costs to lie where they fell. The Court explicitly left open, for determination on a future appropriate occasion, the jurisdictional question regarding whether a prior objection to the Commissioner General was a precondition to the Board's jurisdiction.
The ruling reinforces the strict and unforgiving application of the sixty-day limitation period under Rule 90(1) of the Tanzania Court of Appeal Rules, 2009, particularly for appellants who, after an earlier appeal is struck out for procedural defect, file a fresh notice of appeal. It clarifies that any period of inaction between filing a fresh notice of appeal and applying for a copy of proceedings must be accounted for and, if not expressly excluded by a Certificate of Delay, will count against the limitation period, potentially rendering an appeal incompetent even where the bulk of the delay is otherwise explained. The case underscores the necessity for appellants to ensure Certificates of Delay comprehensively cover all periods of delay, including gaps between filing a notice of appeal and requesting proceedings. It also signals, without resolving, an important unsettled jurisdictional question concerning whether a taxpayer must first lodge an objection with the Commissioner General before appealing to the Tax Revenue Appeals Board, an issue the Court expressly reserved for future determination.
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