Civil Reference No. 7 of 2004
The appellant, Geita Gold Mining Limited (GGML), is a mining company operating under a Gold Mine Development Agreement (MDA) with the Government of Tanzania, which under Article 6 entitles the company and its contractors to import, without restriction, items required for the design, construction, installation and operation of the gold mine, including fuels, subject to Tanzanian law. GGML also holds a Special Mining for Gold Licence and benefits from two Government Notices: GN No. 218 of 2009 (remitting road and fuel tolls for gas oils used exclusively in mineral production) and GN No. 268 of 2010 (remitting excise duty on fuel used solely for mining activities), each later amended. Both GNs conditioned the remission on the fuel not being transferred, sold or disposed of to persons not entitled to similar privileges. GGML used contractors to perform mining activities and supplied them with tax-remitted fuel and lubricants to perform work on its behalf. The Tanzania Revenue Authority (TRA) demanded payment of TZS 2,039,696,116 in road tolls and fuel levies for 2013–2015, asserting that supplying remitted fuel to contractors—who were not entitled to the exemption—breached the conditions of the GNs, thereby forfeiting the remission. GGML's appeals to the Tax Revenue Appeals Board and Tribunal were unsuccessful, leading to this third appeal to the Court of Appeal.
(1) Whether the Tribunal correctly held that, under GN No. 218 of 2009 and GN No. 268 of 2010 (as amended), a mining company's fuel exemption requires that the fuel be used solely by the mining company itself in its mining activities. (2) Whether the Tribunal correctly held that allowing contractors—who did not enjoy similar tax privileges—to use the tax-remitted fuel constituted a prohibited 'disposition' under the GNs, thereby invalidating the exemption. (3) Whether the Tribunal correctly held that TRA's demand for excise duty and fuel levy, on the basis that the fuel was consumed by persons other than the appellant, was lawful.
The appellant argued that Article 6 of the MDA extends the import and tax-exemption benefits to both the mining company and its contractors, and that giving fuel to contractors to perform mining activities on its behalf did not amount to a transfer, sale or disposition since GGML retained ownership and received no payment. It contended that the GNs should be read purposively together with the MDA to include contractors, drawing an analogy to a homeowner supplying materials to a builder, and that it had a legitimate expectation that contractors would be covered by the remission since a TRA officer stationed on-site was aware fuel was given to contractors for GGML's mining activities. The appellant invited the Court to depart from its earlier decisions in Resolute Tanzania Limited v. CG-TRA and Geita Gold Mining Limited v. CG-TRA (Civil Appeal No. 103 of 2017), arguing those decisions failed to consider that there was no true 'disposal' since ownership and consideration did not change hands. The respondent countered that appeals to the Court of Appeal on tax matters are limited to points of law, that the Board and Tribunal had concurrently and conclusively found as fact that the 'giving' of fuel amounted to a sale/disposition, and that the MDA's unrestricted import right is expressly subject to Tanzanian law, which through the GNs limits remission to the mining company itself, not its contractors. The respondent maintained there was no justification to depart from the Court's prior rulings, which had already established that even 'giving' fuel to contractors constitutes a disposition breaching the remission conditions.
The Court of Appeal dismissed the appeal in its entirety, with costs, upholding the decisions of the Board and Tribunal. It held that although the MDA expressly extends benefits to both the company and its contractors, the GNs deliberately mention only the mining licence holder (the company) and not contractors; applying the principle expressio unius est exclusio alterius, this omission was intentional and could not be read to include contractors. The Court found that under the GNs there were two conditions for enjoying remission: the fuel must not be transferred, sold, or disposed of to another person, and it must be used for the intended mining purpose; since these conditions inherently excluded unintended beneficiaries such as contractors, it was unnecessary for the GNs to expressly state that the mining company itself must use the fuel. The Court concluded that GGML's act of giving fuel to its contractors—who were not entitled to similar exemption privileges—constituted a 'disposition' in breach of the GN conditions, correctly triggering TRA's demand for payment of taxes. The Court declined to depart from its earlier decisions in Resolute Tanzania Limited v. CG-TRA and Geita Gold Mining Limited v. CG-TRA (Civil Appeal No. 103 of 2017), noting the appellant had not properly invoked Rule 106(3) of the Court of Appeal Rules requiring such an invitation to be clearly stated in written submissions, and that in any event no sufficient grounds existed to justify departure, particularly as such departures are more appropriately considered by a full bench of five judges.
The judgment reinforces the principle that tax exemption/remission conditions must be interpreted strictly according to their plain language, with no room for equitable interpolation, particularly quoting Cape Brandy Syndicate v. Inland Revenue Commissioner ('There is no equity about tax... Nothing is to be read in, nothing to be implied'). It affirms that where an agreement (such as an MDA) extends benefits to both a company and its contractors, but subsidiary legislation (such as Government Notices) mentions only the company, the omission is presumed intentional and contractors cannot be implied as beneficiaries. The case also confirms that providing tax-remitted fuel to contractors not entitled to similar privileges constitutes a 'disposition' breaching remission conditions, regardless of whether ownership formally transfers or payment is received. Procedurally, it clarifies that appeals to the Court of Appeal in tax matters are confined to points of law under Section 25(2) of the Tax Revenue Appeals Act, and reiterates the high threshold and procedural requirements (under Rule 106(3)/(4) of the Court of Appeal Rules) for inviting the Court to depart from its own prior decisions, emphasizing that such departures are best addressed by an enlarged bench of five judges rather than a standard three-judge panel.
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