Civil Reference No. 7 of 2004
The appellant, a telecommunications company, had purchased software from Siemens Telecommunications (PTY) Ltd. Following a tax audit covering 2001–2004, the respondent (Commissioner General, TRA) issued demand notices for withholding tax and penalties on services and royalty payments. The appellant's objections proceeded through the Tax Revenue Appeals Board (dismissed) and then the Tax Revenue Appeals Tribunal (also dismissed), leading to the present appeal to the Court of Appeal on five grounds concerning the correct characterisation and taxation of payments for the right to use software as 'royalty' under the Income Tax Act, 1973. Before the substantive appeal could be heard, the Court noted that the record contained two different certificates of delay issued by the Registrar of the Tribunal: the first, dated 6/12/2018, excluded the period from 15/11/2017 to 28/11/2018; the second, dated 12/3/2019, excluded a longer period from 15/11/2017 to 11/3/2019. The appellant's counsel had, after receiving certified copies pursuant to the first certificate, waited 55 days before complaining that the copies were unsigned, and only thereafter sought a second certificate of delay without the Registrar ever formally withdrawing the first.
Whether the appeal, accompanied by two different certificates of delay from the Tribunal's Registrar, was properly and timeously lodged before the Court of Appeal, and consequently whether the appeal was competent or time-barred.
Counsel for the appellant, Ms. Kinyaka, conceded the existence of two certificates of delay but attributed the anomaly to the Registrar, who issued a second certificate without withdrawing the first despite the appellant's written correspondence on the matter (which went unacknowledged). She urged the Court either to disregard the first certificate and treat the appeal as competent on the basis of the second certificate, or, in the alternative, to strike out the appeal without costs so the appellant could refile properly. Counsel for the respondent, Mr. Gugami, argued that the second certificate was inconsequential since the first had never been withdrawn, and that measured against the first (valid) certificate, the appeal was filed well beyond the 60-day period prescribed for lodging appeals after exclusion of time for preparation of copies. He urged the Court to strike out the appeal with costs as time-barred.
The Court of Appeal held that two certificates of delay cannot co-exist in respect of the same appeal, and that where a first certificate has not been withdrawn, a subsequently issued certificate is of no legal consequence, as it would improperly amount to the Registrar extending time to appeal—a power the Registrar does not possess. Applying its earlier decisions in Maneno Mengi Limited and Others v Farida Said Nyamachumbe and the Registrar of Companies [2004] TLR 391 and Omary Shaban S. Nyambu v Capital Development Authority and Two Others (Civil Appeal No. 256 of 2017), the Court found the first certificate of delay (issued 6/12/2018) to be the valid one, meaning the appeal ought to have been filed by 27/1/2019 under the proviso to Rule 90(1) of the Tanzania Court of Appeal Rules, 2009. Instead, it was filed 162 days after that deadline, rendering it time-barred. The Court also noted the appellant's counsel bore some responsibility for the delay, having sat on irregular documents for 55 days without promptly seeking rectification from the Registrar. Consequently, the appeal was struck out for being incompetent and time-barred. However, because the Court itself had raised the procedural anomaly suo motu, no order as to costs was made.
The ruling reaffirms and applies the established principle that two certificates of delay cannot validly coexist in relation to the same appeal, and that a Registrar has no authority to effectively extend the time for filing an appeal by issuing a subsequent certificate of delay without formally withdrawing the earlier one. It underscores the importance of procedural diligence by counsel in promptly addressing defects in certified copies of record, and illustrates the Court's willingness to raise and determine jurisdictional/competency issues suo motu even before reaching the substantive merits of a tax dispute, ultimately disposing of the appeal purely on procedural grounds without addressing the underlying tax law questions regarding the classification of software licence payments as royalties.
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