R v Adamson Tolokia and Others (Criminal Review Case 207 of 1939) [1939] ZMHCNR 6 (31 December 1939)

56 Vol. II] R. v. ADAMSON TOLOKIA AND OTHERS. Crim in al R eview Case N o. 207 of 1939. N ative tax— evasion o f payment—failure to pay is not necessarily evasion— no w ilful neglect until nine months after tax payable. Mere failure to pay tax is not evasion o f tax within section 14 (1) (6) o f the Native Tax Ordinance, Cap. 161. T o constitute evasion there must be definite evidence that the accused evaded the payment I f the charge is w ilful neglect to pay tax b y some particular act. the charge cannot be brought until nine months after the tax became payable (section 14 (2)) and in that case it is only necessary to prove that the accused failed to pay the tax and had not obtained exemp­ tion. Once this has been done the onus m oves to the accused who then has to satisfy the Court that there was no wilful neglect on his part. Section 14 (2) o f the N ative T ax Ordinance was amended by Ordinance 7 o f 1944 which amendment altered the date after which non-payment o f tax is considered prim a facie evidence o f wilful neglect to pay the tax. The date is now the 31st o f Decem ber o f the year in which the tax becomes due and payable. For further cases on defaulting in paym ent o f tax see R. v. Chibati Simati p. 130 post; R. v. Kawana 4 N . R . L . R . 9 ; R. v. Kenan Mutambo 4 N . R . L . R . 11; R. v . Solomon M usa M anda 4 N . R . L. R . 13; R. v. Muchuma 4 N . R . L . R . 64; R . v. Isaiah Jonase and Eleven Others 4 N . R . L . R . 100; Bwemdo Nyambe v . Reg. 4 N . R . L . R . 228; Kangachepe N jovu v . The K ing 4 N . R . L . R . 262; R. v . Faroe Zirore 5 N . R . L . R . 50. J effreys, A . J .: The charge in each case is “ did unlawfully fail to pay and evade paym ent o f his tax . . . for the year 1939 ” contrary to section 14 (2) o f the N ative T ax Ordinance (N o. 36 o f 1938). In each case there was failure to pay the ta x bu t w hat evidence was there o f evading tax ? Again why was the charge brought under section 14 (2) o f the Ordinance ? Section 14 (2) deals with w ilful neglect to pay tax . . . ; the charge is not wilful neglect to pay tax but o f evasion; in any case there will have been no w ilful neglect to pay tax for 1939 until nine months after the date when this tax becam e payable (section 14 (2)), i.e., not until after 31st December, 1939. The reference was intended, I presume, to read section 14 (1) (6) and as such I shall consider it, treating the reference to section 14 (2) as a clerical slip. Section 14 (1) (6) provides that any person w ho by any means what­ soever evades (or attempts to evade) paym ent o f the tax shall be guilty o f an offence, etc., etc. [Vo l. II 67. It is true that the accused in each case pleaded guilty but I do not suppose that he actually said “ Guilty No doubt he made an answer which the Court construed as an admission o f guilt, but section 187 (2) o f the Criminal Procedure Code requires that, where an accused person admits the truth o f the charge, his admission shall be recorded as nearly as possible in the words used by him. To evade tax is something much more than to fail to pay tax. Failure to pay tax is an offence created by section 11 o f the Native Tax -Ordinance and is punishable in a manner far. less severe than evasion o f tax is punishable under section 14 (1) (b). To constitute evasion there must ordinarily be some definite overt act as the result o f which payment o f the tax is evaded. Merely to fail to pay tax, which is an omission rather than an act, is not in itself evasion. I f a native when asked whether he has paid tax gives an answer which is intended to deceive and does deceive the tax collector that may be evasion, e.g., if he gives the name o f another native who he knows has paid 1939 native tax intending that the officer to whom he gives the information shall look Up the name in the tax register and there find payment o f the tax recorded against such other name. Or if, when the tax collector is going from hut to hut calling upon natives to produce their receipts or pay the tax, he hides under a bed or in a grain bin, etc., etc. Again acts done or words spoken in the attempt to evade payment are punishable under section 14 (1) (6). I trust that I have made it dear that there has been no evasion in the cases now before me. In each case the conviction and sentence is quashed and any fine which has been paid must be refunded.