Civil Reference No. 7 of 2004
The appellant, Commissioner General of Tanzania Revenue Authority, filed two related appeals (Civil Appeal No. 78 of 2018 and No. 79 of 2018) against the respondent, JSC Atomredmetzoloto (ARMZ), arising from the same underlying transaction and originating from Tax Appeal Nos. 17 and 16 of 2013 respectively before the Tax Revenue Appeals Tribunal. Both appeals were met with identical notices of preliminary objection from the respondent. The objections alleged that the appellant's records of appeal were incompetent because they failed to include copies of the parties' written submissions filed before the Tribunal (as required by Rule 96(1)(k) and 96(2) of the Court of Appeal Rules, 2009), and because the records contained incorrect or incomplete versions of the Tribunal proceedings. Instead of appending the original written submissions, the appellant relied on versions of the submissions that had been reprinted/regenerated by the Tribunal and incorporated into the Tribunal's record of proceedings. The respondent argued these regenerated versions were riddled with mistakes and omitted annexures that were part of the original submissions. Given the identical nature of the objections, the two appeals were consolidated for hearing of the preliminary points.
(1) Whether the appellant's records of appeal were incompetent for failing to include copies of the written submissions filed by the parties before the Tribunal, as required by Rule 96(1)(k) read with Rule 96(2) of the Court of Appeal Rules, 2009. (2) Whether reliance on reprinted/regenerated versions of the submissions appended to the Tribunal's record of proceedings satisfied the requirements of Rule 96(1)(k). (3) Whether the overriding objective principle (Rule 2 of the Rules) could be invoked to cure the defect rather than striking out the appeals for incompetence.
The respondent (through Mr. Bhojani) argued that the appellant's failure to append the actual written submissions filed at the Tribunal rendered the records of appeal incomplete and incompetent, relying on Rule 96(1)(k) and 96(3), and citing several Court of Appeal decisions (including Fedha Fund Limited, Kasanzu Lusasula, Onaukiro Ulomi, and Ali Vuai Ali) for the proposition that an incomplete record invalidates an appeal, and that the choice of documents to exclude is not left to the discretion of the filing party but requires a formal application under Rule 96(3). The respondent further argued that the regenerated submissions appended to the Tribunal's record were defective, contained errors, and lacked annexures, and urged the Court to follow its earlier decision in Mondorosi Village Council, where a similarly mandatory procedural requirement (inclusion of a letter under Rule 90(1)) led to the appeal being struck out despite an overriding objective argument. The appellant (through Mr. Switi) argued that it was an established Tribunal practice to reprint and append the parties' written submissions to its record of proceedings, and that these regenerated versions sufficiently satisfied Rule 96(1)(k), making separate inclusion of the original submissions unnecessary. In the alternative, the appellant invited the Court to apply the overriding objective principle to permit the appellant to file a complete record, citing the CRDB Bank Limited case where missing pages of an already-included document did not invalidate the appeal.
The Court held that the appellant did not meet the requirements of Rule 96(1)(k) of the Rules because the reprinted/regenerated versions of the submissions did not constitute the required 'copies' of the actual written submissions filed by the parties, and were additionally deficient for lacking annexures. However, the Court distinguished this case from Mondorosi Village Council, where the missing document (a letter) was completely absent from the record; here, the submissions were present in some form but fell short of the Rule's specific requirements. Applying the overriding objective principle under Rule 2 of the Rules to achieve substantive justice, the Court declined to strike out the appeals for incompetence. Instead, it granted the appellant leave under Rule 96(6) to lodge the omitted copies of the written submissions within twenty-one days from the date of the ruling, adjourning the two consolidated appeals to a date to be fixed by the Registrar.
The ruling illustrates the Tanzanian Court of Appeal's approach to balancing strict compliance with procedural rules governing the contents of a record of appeal against the overriding objective principle (introduced via amendments to the Appellate Jurisdiction Act) that prioritizes substantive justice over technicalities. The Court clarified that the overriding objective cannot be applied 'blindly' to dispense with mandatory procedural requirements going to the foundation of a case (as reaffirmed from Mondorosi Village Council), but distinguished cases where a document is completely missing from the record from cases where a document is present but technically deficient or incomplete—the latter being more amenable to curative relief under Rule 96(6) rather than outright striking out. This distinction provides guidance on when procedural defects in a record of appeal may be remedied rather than treated as fatal to the appeal's competence.
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