CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: KEREFU. J.A., FIKIRINI. J.A., And MASOUD. J.A.^ CIVIL APPEAL NO. 414 OF 2022 REGISTERED TRUSTEES OF SOCIAL ACTION TRUST FUND..... APPELLANT VERSUS COMMISSIONER GENERAL TANZANIA REVENUE AUTHORITY.........................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Naimilanqa. Vice Chairperson.^ dated the 11th Day of December, 2020 in Tax Appeal No. 36 of 2019 RULING OF THE COURT 24th & 26th February, 2025 KEREFU, 3.A.: The appellant, Registered Trustees of Social Action Trust Fund, has lodged this appeal challenging the decision of the Tax Revenue Appeals Tribunal (the Tribunal) which dismissed its appeal against the decision of the Tax Revenue Appeals Board (the Board) in favour of the respondent, the Commissioner General Tanzania Revenue Authority (the TRA). Before the Board, the appellant complaint was on the issuance of the Skills and Development Levy (the SDL) certificate/interest No. 1155 dated 24th February, 2015 for TZS 213,488,519 comprising principal tax of TZS 125,132,625.00 and interest thereon of TZS 88,348,892.00 for the year of income 2009 to 2012 on the grounds that: (1) The SDL certificate which has been issued by the respondent has no basis as the respondent being a Government Agency has to honour the terms and conditions o f the Deed o f Trust under which the Government o f Tanzania has undertaken to exempt aii taxes and SDL is inclusive; (2) The SDL certificate which has been issued by the respondent has no basis as the appellant being a Government Trust is by the provisions o f section 19 o f the Vocational Education Training Act\ Cap. 82 is exempt from payment o f SDL; and (3) The issuance o f SDL Certificate is not a judicious exercise of statutory discretion as required by law and is in beach o f the principles. In her response to the statement of appeal, the respondent disputed the appellant's claim by relying on the provision of section 19 (1) of the Vocational Education Training Act, Cap. 82 (the VETA Act) which provides for three conditions for an entity to qualify for SDL exemption; one, that, the entity must be a public institution, two, has to be a nonprofit making organization; and three, the entity has to be wholly financed by the government. It was the respondent contention that the appellant did not qualify for the SDL exemption. Therefore, the respondent prayed for the appellant's suit to be dismissed with costs. Having heard the parties, the Board decided the matter in favour of the respondent as it was satisfied that the appellant did not meet the third condition. Thus, the Board dismissed the appellant's appeal with costs. Again, and undaunted, the appellant appealed to the Tribunal vide Tax Appeal No. 36 of 2019. The Tribunal, like the Board, by applying the same provision, dismissed the appellant's appeal with costs for lack of merit. Undeterred, the appellant lodged the current appeal containing three grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this ruling, to reproduce them herein. At the hearing of the appeal, the appellant was represented by Mr. Ayoub Mtafya, learned counsel whereas the respondentwas represented by Mr. Moses Kinabo, learned Principal State Attorney assisted by Ms. Grace Makoa, learned Principal State Attorney together with Messrs. Yohana Ndila and Victor Mhana, both learned State Attorneys. Before we could embark on the hearing of the appeal on merit, we wanted to satisfy ourselves on the propriety or otherwise of the appeal before us on account of the validity of the certificate of delay accompanying the appeal for having exempted the days from 16th December, 2020 to 19th July, 2022 as the period used to prepare the requested Tribunal's documents while the Register's letter notifying the 3 appellant that the said documents were ready for collection was dated 30th June, 2022. We thus invited the learned counsel for the parties to address us on that issue. Upon taking the floor, apart from conceding that the Registrar's letter which notified the appellant that the Tribunal's documents were ready for collection was issued on 30th June, 2022, Mr. Mtafya argued that it was correct for the Registrar to exclude days, in the certificate of delay, from 16th December, 2020 to 19th July, 2022, as the appellant received the said letter on 19th July, 2022. To clarify on his point, he referred us to page 515 of the record of appeal where the appellant acknowledged receipt of the said letter on 19th July, 2022. He then argued further that, pursuant to the proviso to Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the time required to be excluded, in the certificate of delay, is the time used for preparation of the documents to the time of delivery of such documents. According to him, since the Registrar's letter was received by the appellant on 19th July, 2022, then the certificate of delay is valid, as it bears the date when the appellant received the Registrar's letter. He thus insisted that the appeal is properly before the Court. On the other side, Mr. Kinabo argued that, since, Mr. Mtafya had readily conceded that the Registrar's letter notifying the appellant that the documents were ready for collection was issued on 30th June, 2022, it was improper for the Registrar to exclude the days from 16th December, 2020 to 19th July, 2022 as the period used to prepare the requested documents. That, since the certificate referred to the wrong dates, then the same is invalid and cannot be relied upon by the appellant in this appeal. Mr. Kinabo emphasized that the date of the Registrar's letter notifying the appellant's that the requested documents were ready for collection forms the basis of the last date to be reckoned in calculating the number of days to be excluded in computing the period of limitation, that is, sixty (60) days from the date of the Registrar's letter. Besides, he added, the proper date to be considered is that of notification and not when the appellant acknowledged receipt of the Registrar's letter, as suggested by Mr. Mtafya. On that basis, Mr. Kinabo urged us to find that, as the appeal is supported by an invalid certificate of delay, it is time barred liable to be struck out with costs. In a brief rejoinder, Mr. Mtafya reiterated his earlier submission and prayers. On our part, having examined the record of appeal and the submissions advanced by the learned counsel for the parties, the issue for our consideration is whether the appeal is properly before the Court. We shall preface our discussion under Rule 90 (1) of the Rules which regulates the timelines of instituting an appeal in this Court. It categorically states as follows: "90 (1) Subject to the provisions o f rule 128, an appeal shall be instituted by lodging in the appropriate registry within sixty days o f the date when the notice o f appeal was lodged with- (a) a memorandum o f appeal in quintupiicate; (b) the record o f appeal in quintupiicate; (c) security for the costs o f the appeal, save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery o f that copy to the appellant. " It is clear from the above cited provision that, the appellant is required to lodge an appeal within sixty days from the date of filing notice of appeal. The only exception to this requirement is where an appellant has not obtained a copy of the proceedings from the Tribunal and has applied for the same, in writing, within thirty days of the impugned decision and served a copy thereof on the respondent. That, the Registrar may issue a certificate of delay excluding the period or number of days required or used to prepare and deliver the certified Tribunal's proceedings. As to when and the mode of supplying certified proceedings, Rule 90 (5) of the Rules gives the following direction: "Subject to the provisions o f sub rule (1), the Registrar shall ensure a copy o f the proceedings is ready for delivery within ninety (90) days from the date o f the appellant requested for such copy and the appellant shall take steps to collect copy upon being informed by the Registrar to do so, or within fourteen (14) days after expiry o f the ninety (90) days." The above Rule imposes obligation on the Registrar to, one, ensure that the proceedings are ready for delivery within ninety (90) days from the date when the appellant applied to be supplied with the proceedings, two, notify the appellant on the readiness of the requested documents, and three, the appellant is duty bound to take necessary steps to collect copy upon being informed by the Registrar to do so and or make follow up within fourteen (14) days after expiry of the ninety (90) days. In the instant appeal, there is no dispute that the decision sought to be challenged was handed down on 11th December, 2020 and the notice of appeal was lodged on 16th December, 2020. It is also on record that, on 14th December, 2020, the appellant wrote a letter to the Registrar requesting for certified copy of the Tribunal's proceedings, judgment and decree. It is however not clear as to when exactly the said letter was lodged in the Tribunal and or received by the Registrar. However, and as readily conceded by both learned counsel for the parties, the record bears out that, on 30th June, 2022, after expiry of almost 545 days, the appellant was notified by the Registrar that the requested documents were ready for collection. Then, the appellant acknowledged receipt of the said letter on 19th July, 2022. It is our considered view that, the Registrar's letter was prepared contrary to the requirement of Rule 90 (5) of the Rules reproduced above. Pursuant to that Rule, the said documents were required to be availed to the appellant within ninety (90) days from the date of lodging of the appellant's letter in the Tribunal requesting to be availed with the said documents. Worse enough, the record is silent on the necessary steps taken by the appellant within fourteen (14) days after expiry of the said ninety days. The other ailment which undermines the validity of the certificate in this appeal is the period exempted therein. It is on record and as conceded by both learned counsel for the parties that the appellant's letter which requested to be supplied with certified copies of the Tribunal's proceedings, judgment and decree is dated 14th December, 2020 and the Registrar's letter in response to the appellant's letter is dated 30th June, 2022. However, the period exempted in the certificate of delay is from 16th December, 2020 to 19th July, 2022. To appreciate this point, we find it prudent to reproduce the material part of the said certificate herein below: CERTIFICA TE O F DELA Y (Under rule 4, 5, 45A, and 90 (1) o f the Tanzania Court o f Appeal Rules, 2019). This is to certify that the period from 16th December, 2020 when Registered Trustees o f Social Action Trust Fund, the appellant herein applied for copies o f proceedings, Judgment and Decree or Order up to l& h July, 2022 when the appellant was notified that the documents were read for collection, a total number o f five hundred and seventy nine days (579 days) should be excluded in computing the time for instituting the appeal in the Court o f Appeal."[Emphasis added]. It is patently clear from the wording of the certificate that it erroneously excluded the period from the date of 16th December, 2020 to 19th July, 2022 instead of 30th June, 2022 when the Registrar notified the appellant that the said documents were ready for collection. As intimated above, the days to be excluded in the certificate of delay are those days used by the Registrar to prepare the said documents, that is, from the time when the appellant requested for copies of proceedings to the date when the Registrar notified the said appellant that the documents are ready for collection. In CRDB PLC v. True Colour Limited & Another, Civil Appeal No. 29 of 2019 [2021] TZCA 3533: [21 December 2021: TanzLII], we emphasized that: "It is obvious that the certificate o f delay is defective ...as it reckons the date o f supply o f the documents to the appellant as the last date in the computation o f time to be excluded instead o f the date of notification that the documents are ready for collection. " [Emphasis added]. Furthermore, in Hamisi Mdida & Another v. The Registered Trustees of Islamic Foundation, Civil Appeal No. 59 of 2020 [2020] TZCA 1918: [17 December 2020: TanzLII], the Court, after making reference to several authorities on the subject matter, described the role of the Registrar in preparing the certificate of delay as follows: "He must state in very dear terms that the days to be excluded in computing the period o f limitation are those from the time when the appellant requested for copies o f proceedings to the date when he notified him that the documents are ready for collection”. [Emphasis added]. See also our decisions in District Executive Director Kilwa District Council v. Bogeta Engineering Limited, Civil Appel No. 37 of 2017 [2019] TZCA 24: [20 February 2019: TanzLII] and LRM Investment Company Ltd and 5 Others v. Diamond Trust Bank Tanzania Limited, Civil Appeal No. I l l of 2019 [2022] TZCA 315: [2 June 2022: TanzLII]. In the above cases, the Court, among other things, struck out the appeal for being time barred as they were supported by an invalid certificate of delay. Similarly, in the instant appeal, we agree with Mr. Kinabo that the certificate of delay is invalid as it does not reflect the truth of the matter and excluded the period which was not subject for exemption. Therefore, the certificate of delay issued by the Registrar of the Tribunal on 27th July, 2022 purporting to exclude the period from 16th December, 2020 to 19th July, 2022 is invalid. This makes the appeal which was lodged on 12th September, 2022 incompetent as it was lodged beyond sixty (60) days after lodging of the notice of appeal on 16th December, 2020. In the circumstances, we are satisfied that the appellant cannot benefit from the excluded period indicated in the invalid certificate of delay. Now, since the appeal was lodged on 12th September, 2022 after lapse of more than 635 days from the date of lodging the notice of appeal, beyond the prescribed period of sixty days, the same is time barred. Consequently, and for the foregoing reasons, the incompetent appeal is hereby struck out for being time barred. Considering the circumstances of this appeal, we make no order as to costs DATED at DODOMA this 26th day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 26th day of February, 2025, in the presence of Mr. Nuhu Mkumbukwa, learned counsel for the Appellant and Mr. Yohana Ndila, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. c. m^ ^ gesaW jn DEPUTY REGISTRAR COURT OF APPEAL