M/S Moshi Textiles Limited vs Moshi Municipal Council (Misc Civil Application No. 89 of 1994) [1998] TZHC 2038 (16 September 1998)

IN THE HIGH COURT OF TAN?.ANIA·-~ · AT MOSHI MISC CIVIL APPLICl-1TION NO~ 89 - OF 1994 (c/f Misco Civil Application No. 245 of 1991) \ IN THE MATTEROR AN APPLICATION BY M/S MOSHI TEXTILES LIMITED FOR ORDERS OF CERTIORARI A N D IN THE MATl'ER OF THE RELUCTANGF/REFUSAL OF MOSHI MUNICIPAL COUNCIL TO PROCESS A BUSINESS LICENCE APPLICATIDN BETWEEN ···-- ..... ---·· M/S. MOSHI TEXTILES LIMITED. a .. ~ _ ... _ .... - ---. ". 0. l\PPLICANT ··-,·-A...,._N·- 15- ------- ·--- ----- MOSHI MUNICIPAL COUNCIL • 0 •• • • RSPONDENT J U D G E M E N T BEFORE: E .. N. MUNUO, J: Way back in July 1992, the applicant Moshi Textiles1:td. ngaged in-. L Maruma learned advocate to bring the present application for orders of eertiorari and mandumus seeking to nullify the property tax levied on the Moshi Textiles factory premises. The applicant also prayed for to' an order of mandamus to •ompel the respondent notllink the property tax, that is, making its payment a condition for issuing a business licence to the applicant. In the affidavit deponed in support of the application, the Mill Manager of Moshi Textiles Co. Ltd. deponed that the respondent Municipality demanded from the applicant sh 9,948/95 property tax inclusive of penalty· for delay. Later the property tax was revised and .. increased to sh 904,428/- which the app.ibicant complains is not proportiona_te to productivity and is therefore likely to cripple the factory. The applicant paid the tax atter bein ened ~ threatlthat the factory's business licence would be withheld if the property tax was not paid. Hence the action for orders -of certiorari and mandamus against the respondent. Mr. Jomthan learned advocate represented the respondent., Either side subitted in writing. e• 2/ ••

•

• 2 Mr. A. Maruma learned advocate for the applicant submitted that notice o~ levied property tax was not served on the applicant as provided for under Section 11 of the Urban Authorities (Rating) Act No 2 of 1983. He stated th± •> .. notice published in the UHURU newspaper was not served onfue applicant. The court notes that the notice, Annexture R3 was published in the Daily News of Friday , 2nd Octo_b.er 1987 at Page 3; _it as not published in tm UHURU. It is the contention of Mra Maruma that the notice lacks.a date for lodging object.ions as required by the provisions of Section 11(1) (b) of Act No 2 .of 1983; it also has no date t:-: ·!:'bow .wben the Tribunal will sit to determine the objections under Section ll(l)(c) of Act No 2 of 1983. He further contended that under Section 11(2) of Act No 2/3, the respondent should have served a notice by post on the applicant stating (i) that the valuation Roll has been published; (ii) the times for inspecting the Valuation Roll; and · (iii) the date on or before which objections should be lodged pursuant to Section 11(2) of the Urban Authorities (Rating) Act No 2 of 1983. It is the contention. of the applicant's advocate that by not serting the statutory notice on the applicant, the respondent was «ondemned Unheard. He urged the court to revoke the property tax and the valuation thereof - be r . J. . .. . : so that property ~ clevied acoording to the provisions of the Urban Authorities (Rating) Act No 2 of 1983. He also blamed the respondent for failing to publish its intention to create property tax for under Se6tion 81 of the Local Government (Urban Authorities) Act No 8 of 1982 the intention to create a pticular tax has to be published. Section 81 of Act No 8 of 1982 Stajes: ri81.(1) Subject to the following provisions an of this section, where,Lurban authority proposes to make any by laws it shall, at least two weeks before the meeting of the authority, at which it is proposed to consider the bylaws give notice to the inhabitants of the area of its jurisdiction of its intention, in such manner as may most probably bring the notice to the attention of all persons likely to be affected by the bylaws indica- ting the precise purport of the by laws propcs ed, and calling upon all ihterested persons within the area to lodge any objections or representations in writing with the authority within such time as may be prescribed.ir oe3/ •• I

~ 3 ,Government Notice No 777· of 30.10.87 Annexture R2 published the respondent's intention to levy property tax by enacting the Moshi Town Council (Property • ' 0 Rate) By laws, 1987. Mr. Maruma further contended that the statutory notice for the material ·· ---pr-ope.r.t.,y_tax was not published and or served on the applicant by pat. He also stat:d-that'" the·· date __ fq_r lodging objections was also not publicized so the application could not have objected to the tax under the ciraumstances. It is the applicant's case that the property tax in question was arbitrarily levied so it is unlawful and it ought to revoked. ' Starting in the prayer for an order for mandamus, Mr. Jonathan learned

• ·- advoca-t-e .. .fQr the respondent correctly pointed out that the licencing -- -----· ... , .. Authority for th·e-busines-s.Jj.cence of the applicant is the Regional Trading --·---- Officer and not the respondent. I~ ·tht respect issuing an order for . ! mandamus against the respondent not to link the proierty tax with the busimss lieence of the applicant would not serve ariy purpose. The respondent's advocate observed that orders for certiorari and mandamus are discretionary so the court issues such orders only when the applicant has no other remedy. He cited the cases of Morris Onyango versus the Senior Investigating Officer, Customs Department, Mbeya 1980 TLR Rg. 150 and Alfred Lnkaru versus Town Director, Arusha 1980 TLR Pg 326 wherein it was held that the court issues orders for certiorari and mandamus only when there are no other remedies provided by the lw. Mr. Jonathan submitted Section 22 of the Business Licensing,Aet, 1972 should have solved the applicant's property tax complainant if he had bothered to use it. Section 22 of the Business Licensing Act, 1~~2 states: "22. Any person aggrieved by: (a) Any refusal by a licensing authority to grant a business liccne•••••••••• May appeal against such refusal to the Minister." The respondent's advocate film Annextures R 1 , R 2 , R 3 and R 4 to show that the respondent complied with the provisions of Act 2 of 1983, the Urban Authorities (Rating) Act in terms of publishing the intention to levy property tax, the notice on property owners liable to pay the tax and the not ice on those intending to object to the tax. He prayed that the application be dismissed with costs for want of merit. •• 3/ ., .

• 4 i • , The issues in this application are: .. a) whether the property tax in dispute should be abolished; and b) whether an order for mandamus should be issued against the respondent. .. :· '/ ·--... Beginning wi-th· the issue of an order f_or mandamus I have alreaqy noted earlier on that t}:le Busine.ss Lice:p.ce of the applicant is under the charge of the Regional Trade oi:ticer-·,-1<ilina jaro and not the respondent. That ·- ..... . -- being the position there is no ground for iss~ing···arr order_J_o1: mandamus against the respondent. Issue (b) is therefore resolved ·negatively;·- ... _ ··•-. ------ As for the prayer for an ::rder of ceriora.ri to quash the property tax, the respondent filed Armexturcs R 1 .. to R 4 to show that the respondent complied with the provisions of Section 11 of Act No 2/83. Annextures R 2 is the Government Nati-Ge .No. 777 of 1987 which created the property tax under- the Moshi Town Council (Property -ii~t"e1-By--Laws, .. l98_7~ Notice of Inspectior.. of the Valuation Roll was published in the __il,L Ne? of the 21087 at .. - Pg 3 as follows: "•• the Valuation Roll for Moshi Town Council has been deposited a the Headquarters.of the Moshi Town Councilo•o•••o•o•••• .. ••••• . . and Valmtion Tribunal will sit for the purposes . of determining objections to the Valuation Roll at a date to be announced later but not being earlier than the 31 October 1987~••••• Any person may within twenty eight days from the date of publication of this notice inspect the Valuation during the ru,rmal working hours of the Council and may lodge any objections in writing and in the prescribed fonn to the Town Director, Moshi Town Council ••• 11 The Notice of Inspection of the Valuation Roll, Annexture R 3 therefore complied with the provisions of Section ll(l)(c) and 11(2) of the Url::.in Authorities Rating Act No 2 odr 1983~ Property owners who ,,::-.7 :liasatisfied with property tax levied on their property could inspect the Valution Roll and lodge objections to the Town Director within 28 days of the publication of the notice, that is the 2el0 0 87 0 l'he notice in the paily_N~, Annexture R3 was suffioient notice to property owners incluc:.ng the applicant because the paper is widely circulated and read in urban centres. A demand note dated the 5.12 0 88, 5/ ...

I 6' ... Annexture R1 was, served' (by one· Lo Sha.yet a '.Munic'ipal Inspector) on the applicant by Affixing the Dern and Note-· on th& ·nibtice board of the applicant. j_ : ,' In the ligh_t of th·e above the applicat:Lon is devoid of merit. :,• .. ~ appl'ication is' accordingly "dismissed wi t.h · co"sts~ · ' · I ,-,. i, ' It.: is so,_ ordered. (-'• .. Eo No - MUNUO ~ - ... , .l JUDGE •f ··:1 .• J , L- '169.98 - ' " Applic~~: _Mrs· f1:iride: f_or .Mr~. Ao 'M~~uma ~ Respondent": ab.sent but' duly notified. . .

• ' 'J 1 tJ. . MUNUOi 'JUDGE · r..:a;:,;:s,~ 1609.98 ·' . lo., r, -i- I :,,.' ......... /' . . .. The '' :r. Ii