Republic v Thomas s/o Muhaja 1983 Tlr 163 (Hc)

REPUBLIC v THOMAS s/o MUHAJA 1983 TLR 163 (HC)

Court High Court of Tanzania - Mwanza

Judge Mfalila J

November 25, 1983

CRIMINAL REVISION 38 OF 1982

Flynote

Criminal Practice and Procedure - Compounding of offences under section 17 (a), Business Licensing Act, 1972 and sections 4 and 5 of the Hotel Levy Act, 1972 - Procedure to be followed.

Criminal Practice and Procedure - Internal Revenue Officer compounding offences without following laid down regulations, i.e. admission of the payer in writing - Order unlawful.

-Headnote

The accused was a businessman at Muleba in Kagera Region. His alleged offences in respect of non-payment of business licence fees under the Business Licensing Act, 1972 and the Hotel Levy Act of the same year were compounded by the Internal Revenue G Officer. The District Court of Muleba District had ordered the accused to pay the fees together with a fine as applied by the Internal Revenue Officer. Upon the accused's failure to make the payment, the District Court referred the issue to the High Court for confirmation of the order or otherwise against the accused, before the District Court could execute its own order.

Held: 

(i) both under the Hotel Levy Act, 1972 and the Business Licensing Act 1972, the Commissioner (of Income Tax) is empowered to compound offences committed under the Regulations, but both Acts give one important condition, namely that the power to compound the offences shall only be exercised where the person admits in writing that he has committed the offence;

(ii) where there is no written admission by the accused or where the liability is disputed, the Commissioner of Income Tax would have no power to compound the offences, he could only take the liable person to court.

Case Information

Order accordingly.

No case referred to.

[zJDz]Judgment

Mfalila, J.: It would appear that the accused in this case Thomas Muhaja is a businessman at Muleba in Kagera Region. It is not clear in what kind of business the accused is engaged, but it appears that hotel business is one of these. On 15.8.90 the Internal Revenue Officer at Muleba made the following communication to the District Court:

I, S. Kimasha, Internal Revenue Officer at Muleba District, Kagera Region, do hereby apply for E a Court Order to payment of Business Licence fees with fine assessable (sic.) to a total amount Shs. 2,256/25 and Hotel Levy shs. 5,785/= by one Thomas Muhaja of Muleba district Minor Settlement. Under section 17(a) of Act No. 25/72 and section (sic.) 4 and 5 of Hotel Levy Act 1972 the F trader was compounded of the offences under section 20 and 12 of the Acts respectively by the Regional Finance Officer Bukoba on 16/5/80 and 15/5/1989 respectively.

He had promised to cover the same but in vain. I pray your honorable court to summon the G trader and order the same to be paid. The District Court duly issued the summons as prayed, it is not clear under which sections of either of the two enactments. The accused duly appeared and upon being questioned he told the district court that he was not prepared to pay the fine imposed by the Regional Finance officer because he did not agree with the amount and he asked for time to enable him to see the Finance Officer about this problem. When he next appeared in court he announced that he and the Regional Finance Officer did not come to any amicable agreement and he indicated that in the circumstances he would pay the fine imposed by the authorities, but he asked to be allowed to pay the amount by instalments in view of his other financial commitments. The court allowed him to do this in three monthly instalments. But by May, 1981 the accused still had not paid a single instalment, the B district court on its own referred the issue to this court and that the High Court should confirm or otherwise its order against the accused, before that court executes its own order.

Neither of these two enactments provides for this type of procedure as was adopted by both the Internal Revenue Officer and the district court at Muleba. Indeed it can be said that the Internal Revenue Officer found himself with this problem because he did not follow the procedure laid down for compounding offences both under the Business Licensing Act and the Hotel Levy Act.

Both under the Hotel Levy Act and the Business Licensing Act the commissioner is empowered to compound offences committed under the Regulations, but both Acts give one important condition namely that the power to compound the offence shall only be exercised where the person admits in writing that he has committed the offence. In this particular case not only is there no written admission by the accused, but he in fact disputed his liability. In these circumstances the commissioner had no power to compound the offences. The accused could only be taken to Court.

When this matter was referred here by the District Court of Muleba it was decided to exercise revisional jurisdiction under the provisions of sections 20 (3) of the Business Licensing Act and 12 (3) of the Hotel Levy Act under which the accused could have successfully appealed against the Commissioner's order.

As the Commissioner purported to compound the offences under those two Act without complying with conditions laid down in those Acts, his orders were unlawful and the accused was under no obligations to comply with them. For these reasons the fines imposed by the Commissioner are set aside. The Commissioner can proceed against the accused under other provisions of the Act and the Regulations made thereunder.

Order accordingly.

1983 TLR p166

A