19770317 TZHC Arusha

o THE HIGH COURT OF TANZJdTIA I. m JTT'U - JPELL.TE_JURISDICTION HIGB.dOURT CRIILL APPEAL NO. 46 O 1976 ORIGINAL CRIMINAI CASE NO. 113 OP 1975 OF THE DITRICT COURT OF ARUA. DiSTRICT AT RUSHA BORE: Z.MOHI5ED, Esq., District Magistrate •IRUPLfTATIONS LIMITED ...............LPPEIJLLNT (Original Accused) versus (Original Prosecutor) J1JDGI'EllT OIILTHAN J. The appeal involves an interpretatin.of section 5(1)(a) of the Business Licensing Act, 1972. 'Thè.appollant company, iRU PIJNTLTLONS LIMITED was convicucd. of acontravening the prvi'sioias of sections. 3(l).and17(1) of the Act and ehtened to a fine of sh1000. The factb of the case are 'l undisputed. The appellant companr owns a farm on which it groWs a nUmber of crops. Sugar cán.is one of them. After harvesting this crop the bulk f• it is subjepted to some procOsing whereby sugar jtiice is èxtrctedfrôrn the stalks, then. boiled and allowed to cool.- Th esultáit product is jaggerf, otherwise imown in the . thvhi1i vernacular as '!;S Ukari guru". Tho cornpany thbnsë1ls this to. customers. ....For such proc qssihL it has noor taken out any. busjness licence and it is the coni.Qntion df the Republic that the Clpafly by Such omission has offended. against the provisions citod abo Tey.ouiro. every bUifls5 tO opcatc under a licence unless by oGhor provisions of the Jct a business is exempt from operating under a licence In this

connection the learned. stao attorney submits that th.appeflant .compan was not so oxempt.v It is urge byMr. Kapoorfor the . :Ofi1pafly Qia tho other, hand that, the lat±or by the provisions of s. s(i) b of th Act is oxcn'nt froi taLinL out a licence or the. buS'iAcsb of making and sdllng jagery prepared from i.ts owi sugar eano.. .. Now section 5 exam uS certaim businesses from the 'tior oY -bho Act. theso ar - tsinesses falling under section 5(1) thus: "(a) the business.of farmi,raisióf.catte or other stoc.c, market gardening, or dairy farming; (by' the busincssof selling o±ther b y itaii ot wholesale., by any orson carrying on any business • speci,ficd in paragrah (a), where such business 1-ofselling is confined to the oduce of his own . farm or estate;" .. Ttundcrlining is mine. fr, KaDoor....../2 - r4' Wri Kapoor argues that the proccssing being only that of appellant's own sugar cane tho sale of the jaggery is protected by clause (b) as being the produce of its own farm. The learned stao attorney submits on the other hand th3t, the produce of the company's farm is sugar cane and not jaggery. The jaggory he says is the product of the treatment through which the sugar cane underwent. I think Hr. Kapoor is right when ho says the legislare in exempting farming operations from buying licerice intended, to give encouragement or incentive to agricultural activities as a whole.

IndocdGdvorhmcnt policy over the years, as ovidonced parieu1-ri by successive tax laws, has boon to protect and encourage the agricultural sector of the economy.. In my view, - '1i'crbfor,'1iie-os (a) and (b) of section5(1)'• should-be " construed. ...... :. . in , the . broad spirit of such policy. . :. L grower of sü ;a can har a' nu e:of ways of disposing of hisroduco-II 10 is a big grower he may well docide to instal a fctdi ói'tho farm for rô:ocs.&g the produce. 1±', howovor, ho is..a small grower, as the appellant company seems to bo, th ioht of' th'. tduce would not justify the heavy expense '..o,f:building a factory for making suge,r. He would be loft 'ith ho alternatives of oither sol'±j:the harvest to a bIgb" gro7Or with processing facilities as soon as the cutting is done, or of preserving the 'harvest in a non-perishable state until such time as he can more conveniently dispos of it. There may not be a sugar factory in the noigiboirhood end the costs of transporting the bulky sugar cane to the nearest factory or buyer may prove toO heavy and imeconoiric. He.'cannot at tho saae time preserve the harvest in its raw condition for very long, so he decides to re'auce it to a state which allows not only of longer proso'vtion but also of convenient stpragc. Yithout ublbpfion 1 being available sugar growing to a great number 6 f g iors aould be less attractive, and in the

present caO.tho ap'eollant company would probably not have grown any. sugar. The overall effect, would be a slackening of the sugar industry. That would be undesirable and contrary the intention of the lcgislature Looked at in such light thon it seems to me wrong to give the word 'produco" as used in clause (b) a restrictive ' • meaning. It should in my judgment be interpreted liberally ' so as to extend to the product resulting from a simple processing as in. the 'oresont case. There are, incidentally, numerous agricultural crops which could be sold in the .e:.;.na tur a l form in which, they are harvcstd, but which"in practice first undco some processin by f'rm ' '- .'boin ou. . ruong' these •aro coffee an o. sisal. The former can be sold as bcxries or as parbhment coffee after -- . ..• going through the procosse6 of pulping, fermentation cleaning and drying. SO, too, with sisal. It' can be sold by the planter as sisal loaves or a fibre.' For those ' subsidiary operations to my mind no liconcos are. normally taken out. S. In the..... ...../3 S 3 - In the result, I hold that the appellant company was exempt from taking out a licence for ma1iri jaggory from its own sugar cane and selling it The conviction is hereby set aside together with the sentence. The fine should be returned, (p • N • JONATHAN)

JIJDGL Delivered in oponCourt at Arusha this 17th day of March, 1977. (Pi N JOITATHAN) PMJ/MTPN.. JUDGE. -1 -