RULING ALPHA NAMATA RULING FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 11649 OF 2024 (REF. NO. 000011649/2024) AND IN THE MATTER OF CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 AS AMENDED SEVERAL TIMES AND IN THE MATTER OF ARTICLE 138(1) OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 AS AMENDED SEVERAL TIMES AND IN THE MATTER OF SECTION 2(3) OF THE JUDICATURE AND APPLICATION OF LAWS ACT, [CAP 358 R.E 2019) AND IN THE MATTER OF INTERPRETATION OF SECTION 16(7) OF THE LOCAL GOVERNMENT FINANCE ACT, [CAP 290 R.E 2019] AND IN THE MATTE PETITION TO CHALLENGE THE ACT OF THE FIRST RESPONDENT TO COLLECT AND TAXED ON PRODUCE CESS AND SERVICE LEVY ON THE SAME SOURCE OF INCOME (BUSINESS) WHICH AMOUNT TO DOUBLE TAXATION BETWEEN ALPHA NAMATA COMPANY LIMITED APPLICANT VERSUS MTWARA-MIKINDANI MUNICIPAL COUNCIL 1st RESPONDENT THE ATTORNEY GENERAL 2nd RESPONDENT RULING 16/08/2024 & 30/08/2024 MANYANDA, J.: Page 1 of 29 Alpha Namata Company Limited, hereafter referred to as "the Petitioner" has by way of originating summons, accompanied by an affidavit sworn by one Omega Menas Mnali, Petitioner's Principal Officer, has instituted this instant petition against the Respondents namely, Mtwara-Mikindani Municipal Council and the Attorney General, hereafter referred to as the "1st Respondent" or simply as "the Council" and 2nd Respondent, respectively, collectively referred to as "the Respondents". The petition is made under Article, 138(1) of the Constitution of the United Republic of Tanzania of 1977, hereafter referred to as "the Constitution," Section 2(3) of Judicature and Application of Laws Act, [Cap. 358 R. E. 2019] and Section 16(7) of Local Government Finance Act, [Cap. 290 R. E. 2019] The Applicant prays for orders as listed in the Chamber Summons as follows: - 1. To interpret the provision o f section 16(7) o f the Local Government Finance Act [Cap 290 R. E 2019] for corporate entity being charged with service levy while it has been prior subjected to pay produce cess on the same (source o f income) business; 2. To declare that taxing a corporate entity on produce cess and service levy on the same source o f income (business) it is unconstitutional and it amounts to double taxation; Page 2 of 29 3. Declaratory order that the 1st Respondent has violated Article 138(1) o f the Constitution o f the United Republic o f Tanzania, 1977 as amended from time to time by failure to abide with the laws enacted by the parliament; 4. That, an Order for the 1st Respondent to stop collecting the service levy on the same source o f income (business) which the petitioner has already paid for produce cess; 5. That, since this is a public interest case, no orders for costs be granted; and 6. Any other or further order or relief which this Court shall deem fit to grant. Hearing of this petition, with leave of this Court, was conducted by way of written submissions. Ms. Mariam Mabina, learned Advocate, of Mariam Ernest Mabina (Advocate), P. O. Box 104668, Dar Es Salaam, drafted and filed the submissions for the petitioner and Ms. Jacqueline Kinyasi, learned State Attorney, of the Solicitor General's Office 10 Kivukoni, P. O. Box 71554, 11405 Dar Es Salaam, assisted by Hassan Linyama, learned State Attorney, from Mtwara-Mikindani Municipal Council. Alpha Namata Company Limited, the petitioner, is a legal person based in Mtwara dealing with, among others, a business of buying and Page 3 of 29 transporting of raw cashew nut from different parts of Tanzania and other countries. The said Petitioner conducts her business through Mtwara Port within Mtwara-Mikindani Municipality, in Mtwara Region. It happened in December, 2023, in the course of her business, a dispute arose between her and the 1st Respondent (the Council), whereas the Council demanded from the Petitioner payment of service levy for the year 2023/2024. On 11/12/2023, the Council served the Petitioner with a demand note demanding her to pay service levy for being a business entity based in Mtwara-Mikindani Municipality conducting business of exporting cashewnut from Tanzania, hence, according to the Council, the Petitioner was legally bound and eligible to pay service levy. The demand note was followed by a notice of intention to sue. As if not enough, on 20/12/2023, the Petitioner was served with a summons to appear in court pursuant to criminal charges which were later on dismissed on technicalities. Undaunted, on the 02/04/2024 the Council again issued another demand note for payment of service levy and required the Petitioner to submitting her business documents. It is the Petitioner's argument that since she already paid rates of produce cess on her business/source of income therefore, was not eligible to pay service levy on the same business/source of income, or Page 4 of 29 else it will amount into double taxation, which is illegal in terms of Article 138(1) of the Constitution and section 16(7) of the Local Government Finance Act, (supra). On the other hand, the 1st Respondent argued that the law does not prohibit a Local Government Authority to collect service levy from an entity who has already paid produce cess but prohibits the Local Government Authority from collecting produce cess from an entity who has already paid service levy. Further to that, it was argued that an entity may pay both if is a producer and at the same time a seller. That, the petitioner is eligible to pay service levy because she conducted her business within the Council's jurisdiction and neither paid crop cess nor service levy. Amidst this legal bout between the Petitioner and the 1st Respondent, the Petitioner chose to engage this Court in order to have the law interpreted and parties' rights determined. The Petitioner proposed four issues for determination, namely: - 1. Whether the provisions o f Section 16(7) o f the Local Government Finance Act (supra) provide for the directions on when or at what circumstances service levy is taxed; 2. Whether the Law allows the Local Authorities to collect both service levy and produce cess on the same business; Page 5 of 29 3. Whether taxing a corporate service Levy on the same source o f income or product which has prior been subjected to produce cess amounts to double taxation; and 4. What reliefs parties are entitled to. On the other hand, the Respondents proposed three issues for determination as follows: - 1. What is the proper interpretation o f Section 16(7) o f the Act; 2. Whether the acts o f the 1st Respondent violate Article 138(1) o f the Constitution; and 3. What reliefs are parties entitled too. As it can be seen, the Petitioner's second and third issues boil to one issue, whether the impugned provisions of the law allow collection of both service levy and produce cess from the same business income which amounts to double taxation. Thereby making a total of three issues. This Court adopts all the issues proposed by both parties. The first issue proposed by the Petitioner correlates with the first issue proposed by the Respondents. The Petitioner's second issue combined with the third issue correlate with the second issue by the Respondents, so do relate the third issues. Page 6 of 29 As stated above, hearing of this petition was conducted by way of written submissions. The counsel for the parties filed submissions which I will not reproduce in this ruling, but I will be referring to in the course. I will start with the first issue. In my understanding, both parties are asking for a word of this Court on interpretation of section 16(7) of the Local Government Finance Act, as far as collection of service levy and produce cess is concerned. Before I delve into the issue, let me visit the law on interpretation of tax statutes. As rightly, with assistance of the authority in Mwalimu Paul John Muhozya v. A. G [1996) TLR 130, put by the counsel for the Petitioner, it is within the province of the courts to interpret law and through the wordings of Article 4(4) of the Constitution, the Judiciary should adhere to the rules of interpretation of the law in order to meet the requirements provided under Article 107A(2) of the same Constitution in the dispensation of justice. The principle of law in relation to levying of taxes is that no tax should be levied without clear provisions of the law imposing it and the same should only be levied in accordance with the law. Article 138(1) of the Constitution provides as follows: - "138(1) No tax o f any kind shall be imposed save in accordance with a law enacted by Parliament or Page 7 of 29 pursuant to a procedure lawfully prescribed and having the force o f law by virtue o f a law enacted by Parliament" The Court of Appeal of Tanzania, as far as this principle is concerned, stated at page 7 in the case of Bulyanhulu Gold Mine Ltd vs. Commissioner General (TRA), Consolidated Civil Appeals No. 89 and 90 of 2015 [2016] TZCA 571 (8 March 2016) cited by the Petitioner's counsel, as follows: - "in ordinary life taxes are in fact as complex as life itself because they are in derogation o f personal rights and property interests worldwide and therefore no tax can be levied and collected without the authority o f law." See also the case of BIDCO Oil and Soap Ltd vs. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 89 of 2009 (unreported). The totality of the authorities above is that no tax is levied without being permitted by the law and the same is levied in accordance with the law. This takes me to the principles of tax statutes interpretation. The Petitioner's counsel did not say a word on this, but the counsel for the Respondents submitted articulating principles of statute interpretation generally that: one, courts should give effect to the natural ordinary Page 8 of 29 meaning where the words of a statute are clear, unless the court finds that to do so, would lead to hardship, serious consequence, inconvenience, injustice, absurdity or anomaly; two, a statute must be read as a whole, a given provision of the law should be construed with reference to the other provisions in the Act so as to make consistent enactment of the whole statute and three, that interpretation generally to be in favour of presumption of constitutionality. I agree with the Respondents' counsel, the principles of statutory interpretation have been stated and restated by our Superior most Court in our land, the Court of Appeal of Tanzania. Among the cases cited by the parties' counsel in which the said principles were made clear are Bulyanhulu Gold Mine Ltd vs. Commissioner General (TRA) (supra), Principal Secretary Ministry of Finance and Planning Zanzibar v. Said Ally Usi & 9 others (Civil Appeal No. 300 of 2021) [2022] TZCA 368, (16 June 2022) and Republic vs. Mwesige Geofrey & Another, Criminal Appeal No. 355 of 2014 (unreported) [2015] TZCA 264 (19 February 2015) In Bulyanhulu Gold Mine Ltd vs. Commissioner General (TRA) (supra), the Court of Appeal dealt with principles of tax statutes interpretation whereas, having made reference to a Book, "Income Tax Law In Tanzania Source Book,"DUP (1996) Ltd, 2000 at pp 35- 47, Page 9 of 29 by Professor Florens Luoga, listed with approval several rules of tax laws interpretations at page 9 of the judgement, the relevant ones on plain meaning rule was stated in the following words: - "3) Words o f the Statute must be read in their context. The main rule is that, words and phrases are to be construed in the sense in which they are ordinarily used, but where they have a technical meaning in law, they must be construed in accordance with that meaning. 4) Departure from the literal construction o f statutory language. The main rule o f construing taxing statutes is that one should look simply at what is clearly said. However, cour ts may sometimes depar t fr om li teral construction, where such construction leads to an absur d result which cannot have been contemplated. For instance, where such li teral construction can lead to unfair and highly inequi table results. (AG vs HALLET2H & N. 368." (emphasis added) Likewise in Commissioner Genera TRA vs Geita Gold Mine Ltd, Civil Appeal No.192 of 2021, [2022] TZCA 567 (22 September, 2022), the Court of Appeal of Tanzania restated the plain meaning rule of tax statutes interpretation as follows: - "To this end, we wish to reiterate what we stated in Pan African Energy Tanzania Limited v. Commissioner Page 10 of 29 General Tanzania Revenue Authority, Civil Appeal No. 81 o f 2019 (unreported) thus: '...in the familiar canon of statutory construction o f plain language, when the words o f a statute are unambiguous, jud i cial inquiry is complete because courts must presume that a legislative says in a statute what it means and means in a statute what it says there. As such, there is no need for the interpolations, test we stray into the exclusive preserve o f the legislature under the cloak o f over zeal interpretation.' Indeed, in Commissioner General, Tanzania Revenue Authority vs Ecolab East Africa (Tanzania) Limi ted (Civil Appeal 35 o f 2020) [2021] TZCA 283 (2 July 2021) cited to us by Mr. Kinabo in support o f his submission, the Court clearly emphasized the need o f adhering to the plain meaning when it stated that: 'if the words o f a taxing statute are clear, effect must be given to them irrespective o f the consequences. . . " (emphasis added) Back to the case at hand; the first question raised by the Petitioner's counsel is whether the provisions of Section 16(7) of the Local Government Finance Act (supra) provide for directions on when or at what circumstances service levy is taxed. This question is related to Page 11 of 29 the first question by the Respondents' counsel stating that what is the proper interpretation of Section 16(7) of the Act. The impugned provisions read as follows: - "16(7) The rates imposed in relation with the service levy shall be payable in lieu o f the industrial cess and the corporate entities paying service levy shall not be liable to pay the produce cess." As it can be seen, the said impugned provisions of the law in my view, have no ambiguity as such the same deserve to be given their literal meaning because on a plain and ordinary meaning of the said words used in the impugned provisions, counsel for both parties agree that they provide for payments of two types of taxes. One, payment of service levy which formerly was known as industrial cess; and two, payment of produce cess. It makes it clear that, these taxes are payable by subjects of the concerned local government. In addition, my view is that, by using the words " shall be payable" the impugned section 16(7) makes payment of service levy a mandatory liability to all natural or legal persons with business licences for conducting business within the jurisdiction of the concerned local government. Page 12 of 29 However, when it comes to payment of produce cess, the same provisions prohibit payment of produce cess on the same business income where service levy is paid by the same natural or legal persons. The said provisions do not define the two forms of tax it establishes, but else where under the same Act service levy is defined. Section 6(u) of the Local Government Finance Act, defines service levy in the following words: - "all monies derived from the service levy payable by corporate entities or any person conducting business with business licence at the rate not exceeding 0.3 percent o f the turnover net o f the value added tax and excise duty. The term "turnover" in business simply means "income" or "gross v % ^ revenue," it comprises of all monies amassed by the concerned business before expenses have been deducted. Service levy is calculated based on turnover of the business. It is a 0.3 percent of the turnover of the business in a given period of time. It follows therefore that, as far as mode of payment of service levy is concerned, section 16(7) of the Local Governments Finance Act is to be read together with section 6(u) of the same Act. It is a business operating in the jurisdiction of the Local Government Authority concerned that is supposed to pay service levy based on the total income obtained during the given period of time. Page 13 of 29 On the other hand, produce cess, according to the counsel for the Respondent's contention, which is not controverted by the counsel for the Petitioner and which I agree with, is a revenue paid by producers engaged in the production of the products in the jurisdiction of the concerned local government. It follows therefore, under the provisions of section 16(7) of the Local Governments Finance Act, once a business entity pays service levy, cannot pay produce cess because the produce cess become paid through the service levy. To put it in mathematical form, produce cess is a sub-set of service levy. It was posed by the counsel for the parties that if a corporate entity pays service levy is not liable to pay produce cess whether it also means that such a corporate entity which pays produce cess is not liable to pay service levy. In other words, whether there is a way round, that is, vice versa to the position under section 16(7) discussed above. The Petitioner's counsel answered this question in affirmative, but the counsel for the Respondents answered it in negative. The argument by the counsel for the Petitioner is deduced from the wording of section 6(7) in particular prohibition of payment of produce cess when service levy has been paid, according to her, that means, produce cess is an alternative tax to service levy. Page 14 of 29 The argument by the counsel for the Respondents is that the law at issue does not prohibit corporate entities which pay produce cess from paying service levy but only corporate entities paying service levy are exonerated from paying produce cess. With due respect to the counsel for the Petitioner, I agree with the argument by the counsel for the Respondents. As this Court has found above, there is no ambiguity under the impugned provisions calling for other formulars of statute interpretation other than the plain meaning of the words used therein. Again, as explained above, on a plain and ordinary meaning of the said words used in the impugned provisions, there is only one way, that is, exemption is provided for a business entity which pays service levy, there is no alternative that payment of produce cess is also exempted from service levy liability. I say so because the words of section 6(7) are so clear to that effect. The words "shall not be liable to pay the produce cess" used therein, in my view, do not connote or amount to mean that a business entity who pays produce cess is also not liable to pay the service levy. Had the legislature intended to mean so, would have said it in clear words. Any interpretation extending those words to the way around is to put words into the legislature which it did not want to say and mean. Page 15 of 29 Let me remind the counsel for the parties what the Court of Appeal of Tanzania stressed in Commissioner Genera TRA vs Geita Gold Mine Ltd, (supra) on use of plain meaning when interpreting tax laws that 'when the words o f a statute are unambiguous, judicial inquiry is complete and further that if the words o f a taxing statute are dear, effect must be given to them irrespective o f the consequences.' In the instant matter, the impugned provisions, being clear and unambiguous, the judicial inquiry is complete, irrespective of the consequences because any interpretation contrary to their plain meaning will lead to ambiguity, which must be avoided. In the premises, it is the views of this Court that section 16(7) is not in contravention of Article 138(1) of the Constitution because it clearly and unambiguously provides for charging of service levy and produce cess, exempting the latter tax where the former tax is paid by the same business income. This brings me to the second and third issues raised by the Petitioner's counsel that is whether the law allows the Local Authorities to collect both service levy and produce cess on the same business income and whether that does not amount into double taxation; which is equivalent to the second issue by the counsel for the Respondents Page 16 of 29 whether the acts of the 1st Respondent violate Article 138(1) of the Constitution. The complaint by the Petitioner in these issues stems from disgruntle following the acts of the Council serving her with demand notes to pay service levy. The Petitioner's contention is that she did not deserve to pay the same because she already paid crop (produce) cess when purchasing cashewnut from farmers. The Respondents do not accept the Petitioners contention arguing that since the Petitioner was conducting another business, in its jurisdiction, of processing and exporting cashewnut business which is different from buying raw cashewnut from farmers then, that other business of processing and exporting cashewnut amounted into a service business, liable for service levy payment. In rejoinder submissions, the Petitioner denied to neither conduct a business of exporting nor possessing a licence for a business of crop exportation. However, she admitted to possess export permits issued by the Cashewnut Board of Tanzania with which she only acted as a customer to other companies who transported cashewnut abroad; she earned nothing from exporting cashewnut, instead she incurred expenses from exportation services by those other service providers. Page 17 of 29 A question now is whether the act by the 1st Respondent of demanding service levy payment from the Petition is double payment of tax, an act prohibited under Article 138(1) of the Constitution. This controversy should not detain me. Section 6(u) of the Local Governments Finance Act quoted above is very clear that among the sources of revenue for an urban authority is service levy payable by corporate entities or any person conducting business with business licence from its jurisdiction. The words "corporate entity" are not defined under the Act in issue. However, the Council adopted the provisions of section 6(u) by making under Section 6(1) of the same Act, a By-law known in Kiswahili as Sheria Ndogo za (Kodi ya Huduma) za Haimashauri ya Manispaa ya Mtwara - Mikindan, 2011" Literally meaning By-law (service levy) of Mtwara-Mikindani, 2011. In the definitional order 3, the words " corporate entity"are defined in Kiswahili as follows: - "taasisi ya kibiashara" ina maana ya taasisi HiyosajiHwa kwa mujibu wa sheria ya Makampuni au Sheria ya Majina ya Kibiashara inayojishughuiisha na shughuii za kiuchumi za uzaiishaji wa bidhaa au mazao ya kiiimo, usambazaji wa bidhaa au utoaji wa huduma na au biashara ikiwemo uigizaji wa bidhaa kutoka nje ya nchi" Page 18 of 29 In unofficial translation means a corporate entity means an entity registered under the Companies Act or Business Names Act dealing with economic activities of goods production, agricultural crops production, goods distribution, service production including importation of goods from abroad. In my understanding, the above definition of corporate entity includes any entity providing any service for gain. Order 4 of the said By­ law adopts the provisions of section 6(u) of the Local Government Finance Act in the following Kiswahili words: - "4. Halmashauri itatoza na kukusanya kodi ya huduma kwa mujibu wa Sheria Ndogo hizi kutoka kwa kila taasisi ya kibiashara katika kila mwaka wa mapato ambayo ni sawa na asilimia sifuri nukta tatu (0.3%) ya hesabu ya shughuli zote zikiwemo za uzalishaji wa bidhaa au huduma kutoka nje ya nchi zinazofanyika katika eneo la Halmashauri ukiondoa kodi ya ongezeko la thamani na kodi ya mlaji." In an unofficial translation means the Council shall charge and collect service levy according to those By-laws from each corporate entity on 03% of annual turnover including production or importation of goods from abroad net of the value added tax and excise duty. In summary, the Council is legally allowed to charge and collect service levy from business entities licenced to operate in its jurisdiction, Page 19 of 29 the operation is wide enough ranging from production of agricultural products, provision of service, distribution of goods to importation of goods from abroad. In this petition, the Petitioner admitted in rejoinder that she undertakes some business activities in the process of exportation of cashewnut within the jurisdiction of the Council. Then, whether she assists other companies in exportation of cashewnut with or with no profit making, she is caught up in the cobweb of the By-law explained above. I say so because it is undisputed that the Petitioner conducted her self in a form of a business within the jurisdiction of the Council with all signs of earning income. Such a business ought to be licenced and annual returns submitted from which the issue of service levy would have been ascertained and settled to find out, if no income was gained, then, obvious no service levy payment demand would be expected. Further, the counsel for the Petitioner contended that her client paid crop (produce) cess to Cooperative Societies on invoice raised by Cooperative Societies, therefore, it is a jeopardizing double tax payments to pay service levy and crop cess, hence unlawful. The counsel for the Respondent argued that the payments which the Petitioner made to the Cooperative Unions was payment of crop cess by the farmers as producers liable to pay the cess which she collected Page 20 of 29 by deducting from sell price when she was purchasing the raw cashewnut. That, the said payment made by the Petitioner was mere deductions from the purchase price which was not paid to the Council by the Petitioner. That the petitioner did so just as "a farmers agent". In his views, the counsel for the Respondent, the Petitioner neither paid service levy nor crop (produce) cess to the Council. The Petitioner's counsel counter argued this contention demanding evidence from the Respondents to prove that the monies paid by the Petitioner to the Cooperative Unions as crop cess were deductions from the bid price of cashewnut offered by farmers. In return, the counsel for the Respondents also raised a question for want of evidence that the Petitioner paid crop cess. In this area of controversy, it not disputed that the Petitioner conducted a business of buying raw cashewnut in Mtwara Region and in the course of doing that business, she made some payments to the Cooperative Unions. The counsel lock horns on an answer to a question, what those payments the Petitioner made to the Cooperative Unions were for. The Petitioners counsel says the same was crop (produce) cess paid by the Petitioner, while the Respondents' counsel say it was not crop cess paid by the Petitioner. Page 21 of 29 In order to have an answer to this question it is important to understand what a cooperative union means. Cooperative organization or union is defined to mean a voluntary association of persons who join together with the motive of welfare of the members. It is a society which has its objectives for the promotion of economic interest of its members in accordance with cooperative principles. See https://lawinsider.com. It follows from the definition above, therefore, that a cooperative union of cashewnut growers is an association of bunch of cashewnut farmers who come together with common objectives for the promotion of economic interest of its members in accordance with cooperative principles. In my view, the act of the Petitioner paying cooperative union is equal to paying the farmers who came together under those union % X 'V umbrelas. In the premise, I agree with the Council for the Petitioners contention that the payments made to the cooperative unions was made to the farmers who are the producers of cashewnut. The Cooperative Unions sold the cashewnut to the Petitioner on the farmers behalf and also received the payments of the sold cashewnut from the buyers who also made cess deductions on the farmers behalf. Page 22 of 29 Another question is how did the Petitioner make the payments. It was deponed by the Petitioner in the reply affidavit to the counter affidavit and so argued by the Petitioner's counsel, that the payments were made following invoices raised by the Cooperative Unions, who as, I have said above, are composed of cashewnut farmers. Means that the Petitioner paid the money to the cashewnut growers, in the context of cooperative unions, in the course of purchasing their cashewnut. The Respondents' counsel argued that since it is undisputed that the Petitioner was a purchaser of raw cashewnut from farmers through their cooperative unions, then, no crop levy was directly levied from the said purchaser by the Local Government Authorities, but, the purchasers in the course of paying auction price per bid to the cooperative unions, who received the money on behalf of the farmers, therefore, it means that it was from the purchase price where crop cess was deducted. According to the Respondents' counsel, produce cess was not paid by purchasers, but it was paid by farmers through deductions made from the sale price which was paid to the Cooperative Unions by the purchasers. I am increasingly of a view that the crop cess payments were a deduction made by purchasers from the bid price because the said amounts deducted by purchasers were actually supposed to be paid to Page 23 of 29 the farmers who in turn would individually repay to the same to their Cooperative Unions. In other words, in this case, the Petitioner, as a purchaser, acted as an agent of the Cooperative Unions in collection of the crop cess from farmers which could otherwise be paid by them individually. The counsel for the Petitioner argued in rejoinder that the money paid by the Petitioner to the Cooperative Unions, is crop (produce) cess paid by her client. That when the petitioner purchased raw cashewnut from the Cooperative Union, she deducted the amounts which she paid to the Cooperative Unions, who in turn, remitted the same to the Council (1st Respondent). According to the Petitioner's counsel, that is enough proof that produce cess was paid by the petitioner and not farmers. The counsel for the Respondents opposed this contention arguing that since Cooperative Unions do not, under the law, pay crop (produce) cess, but sell cashewnut on behalf of their member farmers, then, they only remitted the produce cess to the 1st Respondent collected from sell price deductions made by purchasers as proved in Annexture OSG 1. After dispassionately considering the equally urging submissions, with due respect to the Petitioner's counsel, I agree with the counsel for the Respondents that the money paid by the Petitioner to the Cooperative Unions as crop cess deductions, was remitted to the Council Page 24 of 29 (1st Respondent) by the said Cooperative Unions on behalf of farmers. In my firm opinion, this process means that the cess was paid by the farmers who were crop producers, not the Petitioner who was a mere purchaser. To this point, I am enriched in making a finding that the Petitioner neither paid service levy, which she denied contending that the same is exempted under section 16(7) of the Local Governments Finance Act nor paid crop cess as found herein above. The questions raised by the Petitioner's counsel "whether the law allows the Local Authorities to collect both service levy and produce cess on the same business', is answered in negative, as explained above, section 16(7) of the Local Government Finance Act, in its plain meaning, is very clear that it allows collection of service levy and crop (produce) cess, but it does not allow collection of crops (produce) cess where service levy has been paid. The second question raised by the Counsel for the Petitioner "whether taxing a corporate on the same source o f income or product which has prior been subjected to produce cess amounts to double taxation" is answered in affirmative only to the extend where the corporate entity do not engage in dissimilar business, say; service delivery business activities and at the same time production of produces (crops) In such a case, each dissimilar business income is liable to Page 25 of 29 payable taxes because section 16(7) of the Local Government Finance Act clearly prohibits collection of both service levy and produce (crop) cess on the same business income. The issue "whether the acts o f the 1st Respondent (the Council) violate Article 138 (1) o f the Constitution" is also answered in negative on reasons explained above. The impugned section 16(7) of the Local Government Finance Act is in conformity with the provisions of Article 138(1) of the Constitution because, while the said Article 138(1) enshrines in the Constitution the tax principles that no one should be charged tax without authorizing law in force and charging of tax must be in according with law, section 16(7) provides for charging and collection of taxes prohibiting double taxation. This brings me to the last issue "what reliefs are parties entitled td'. The Petitioner in this matter asked in the Chamber Summons for the following reliefs: - 1. To interpret the provision o f section 16(7) o f the Local Government Finance Act [Cap. 290 R. E 2019] for corporate entity being charged with service levy while it has been prior subjected to pay produce cess on the same (source o f income) business. Page 26 of 29 2. To declare that taxing a corporate entity on produce cess and services levy on the same source o f income (business) its unconstitutional and its amount to double taxation. 3. Declaratory order that the 1st Respondent has violated Article 138(1) o f the Constitution o f the United Republic o f Tanzania, 1977 as amended from time to time by failure to abide with the laws enacted by the parliament. 4. That, an Order for the 1st Respondent to stop collecting the service levy on the same source o f income (business) which the petition has already paid for produce cess. 5. That, since this is a public interest case no orders for costs be granted. On the other hand, the Respondents asked for dismissal of the petition for want of merit with costs. After surfing through the pleadings, submissions, and doing analysis of the evidence attached to the affidavit and counter affidavit and reply to the counter affidavit and the applicable law, based on reasons and findings I have made above, I am satisfied that the prayers asked by the Petitioner are untenable. The petition is devoid of merit to the extent I have explained above. It stands to be dismissed for want of merits. Page 27 of 29 Consequently, I do hereby make the following orders: - 1. The petition is dismissed in its entirety for want of merits; 2. Section 16(7) is not violative of Article 138(1) of the Constitution because it clearly and unambiguously allows collection of service levy and crop (produce) cess, but it does not allow collection of crops (produce) cess where service levy has been paid by the same business entity conducting the same business. 3. The 1st Respondent (the Council) act of collecting service levy, the subject of this matter is lawful and in conformity with Article 138(1) and section 16(7) of the Local Government Finance Act no statutory duty or obligation is breached. 4. This being a public interest case, no order as to costs, each party to bear its costs. It is so ordered Dated at Dodoma this 30th day of August, 2024 F. K. MANYANDA, JUDGE Delivered at Dodoma in the presence of the Ms. Mariam Mabina, Counsel for the Petitioner and Hassan Linyama, State Attorney, for the Page 28 of 29 Respondents this 30th day of August, 2024. Right of appeal dully explained. F. K. MANYANDA, JUDGE Page 29 of 29