Sachania v Municipal Board of Mombasa (C.A. No. 41/34.) [1934] EACA 6 (1 January 1934)

#### APPELLATE CIVIL

#### Before HORNE. J.

## MADHAVJI LALJI SACHANIA, Appellant $(Original \ Defendant)$ $\overline{v}$ .

## MUNICIPAL BOARD OF MOMBASA, Respondent (Original Plaintiff).

# C. A. No. $4\frac{1}{34}$ .

- (Rating) Ordinance, 1928—Correction of Local Government Valuation Roll by local authority—Error as to the nature of the interest valued—Collection of rate unpaid by reason of such error. - Held (27-3-35).—That on the true construction of section 13 the expression "nature of the interest" occurring therein is equivalent to the expression "rarticulars in regard to such rateable property as may be necessary for enabling such valuer to make a correct valuation thereof" occurring in section 8 (3), and that consequently an error as to the amount of rent by which the appellant's rateable property was undervalued could be corrected by the local authority under section 13. - Held Further.—That notice under the first proviso to section 13 was unnecessary and that rates due in respect of the error were recoverable.

The annual rent paid under leases in respect of three plots of land had been erroneously taken to be £60 per annum for each plot whereas in fact the total for the three plots was only £60 or £20 for each plot. In consequence of the mistake made in the general valuation in 1929, the free-holder's interest was overvalued and the lease-holder's (the appellant's) interest was undervalued. In 1932 the error was discovered and the local authority sought to correct the same under section 13 (e) of Ordinance No. 20 of 1928 and to recover the additional amount due in rates from the appellant. The appellant objected on the grounds that section 4 of Ordinance No. 25 of 1930 debarred the respondents from correcting the roll, alternatively that no proper notice was given and that a correction under section 13 (e) could not have a retrospective effect. The resident magistrate gave judgment in favour of the local authority and the ratepayer appealed.

### Patel for appellant.

Ross for respondent.

JUDGMENT. - This is an appeal from a judgment of the Resident Magistrate, Mombasa.

The appellant, a ratepayer, was sued by the respondents, the local authority, for rates due from him in 1929, 1930, 1931 and 1932, and judgment was given for the respondents. The appellant's first and principal ground of appeal is that the learned Resident Magistrate was wrong in law in respect of the rates for 1929, 1930, 1931 (those for 1932 are admitted, being based. on a new valuation roll,) in that he ought to have held that the respondents were debarred from correcting an error in the nature of the interest valued appearing in the Valuation Roll of 1929 by reason of the terms of the Validating Ordinance No. $25/1930$ . It appears that the notice given under section 18 of the Principal Ordinance, the Local Government (Rating) Ordinance of 1928, was insufficient in time and after litigation it was necessary to validate it in order that collection of rates could proceed. Section 2 of the Validating Ordinance rendered the notice valid. Section $3$ declared that the rate fixed by the said notice shall be binding and not liable to be contested by suit. These two sections overcome the difficulty caused by the faulty notice.

Then follows the fourth section on which the appellant relies:-

"For the purpose of removing doubts it is hereby declared that the Mombasa Valuation Roll signed and certified by the President of the Valuation Court appointed by the Municipal Board of Mombasa on the 12th day of March, 1929, is fixed and binding upon all parties concerned, notwithstanding anything contained in the Principal Ordinance or in any Ordinance amending the same, and no action contesting the said Roll shall be entertained by any Court in the Colony. Provided always that the said Roll shall be subject to the provisions of sub-section $(1)$ of section 3 of the Principal Ordinance relating to the revaluation of rateable property within the Municipality of Mombasa."

This declares that the Valuation Roll, which was in existence. before the notice being signed and certified on 12th September, 1929, is fixed and binding upon all parties concerned and no action contesting the said roll shall be entertained by any Court in the Colony.

$\overline{t} \rightarrow$

By section 11 of the Principal Ordinance the Valuation Roll is also made fixed and binding upon persons who do not appeal within time against the valuations fixed or determined by the The reason for section 4 is not obvious but presumably roll. there were in existence some grounds for saying that the roll. was invalid by reason of something contained in the Principal Ordinance.

The validating Ordinance is to be read as one with the Principal Ordinance, and once the validating Ordinance has operated so as to put the faulty notice and the threatened

valuation roll upon a legal basis it must be upon the basis provided for in the Principal Ordinance.

The first ground of appeal therefore fails.

The second ground raised is that no proper notice of the correction of the roll was given under section 13. The learned Resident Magistrate finds that no notice was sent to the appellant before the roll was corrected, but that a notice was sent subsequently and that the appellant having failed to make an objection under the second proviso to section 13 he had lost all right to claim a notice under the first proviso. Certain documents, Exhibits 1 and 2, have been put in which would tend to show that the local authority regarded the correction as a revaluation. But the enclosure to Exhibit 3 which was sent to the appellant with the covering letter is headed "Correction under section 13 (e)." The letter is dated 24th October, 1932, and the plaint was filed on 7th September, 1934. The appellant was in India. Whether the appellant is entitled to a notice under the first proviso depends upon whether "the correction of an error in the nature of the interest valued made in such roll" is "an interim valuation". It may be that a clerical error or an error in the name of the owner will not necessitate any alteration in the valuation. And on a first reading of section 13 (e) it would appear that the correction of an error in the nature of the interest would not affect the valuation because all that is recorded on the roll as to the nature of the interest are the letters "L. H." which presumably mean leasehold. I am of opinion, however, that a restricted meaning of "nature of the interest" would be contrary to the general intention of the enactment as collected from the enactment itself. The valuer appointed to prepare the roll is entitled under section $8$ (3) to call upon the owner of rateable property (the appellant's interest is rateable property) "for such written particulars in regard to such rateable property as may be necessary for enabling such valuer to make a correct valuation thereof." If therefore "nature of the interest" is simply L. H. and nothing more as shown in the roll there is no error here requiring correction. If on the other hand "nature of the interest" receives a broad interpretation so as to read synonymously with "particulars in regard to such rateable property as may be necessary to make a correct valuation thereof" then "nature of the interest" would include the quality of the interest, i.e. freehold or leasehold, and quantity of the interest, i.e. whether for years or for life, and the essential thing for forming a correct valuation, viz. the annual rent. And there being an error in the amount of the rent the correction of that error though resulting in a consequential alteration in the valuation shown in the roll would not in my opinion amount to an interim valuation requiring notice to be given. In $Healey$ v. Thames Valley Railway Company (5 B. and S. 769, and 122 E. R. 1016) this vague phrase "nature of the interest" was under

The words appeared in section 68 of the Lands discussion. Clauses Consolidation Act 1845 and it was held that the true construction of section 68 was that the term "nature of the interest" was equivalent to the term "particulars of estate and interest" which occurred in section 18 of the same statute. (122 E. R. 1020 judgment of COCKBURN C. J.). I think here that it is right to take the words "nature of interest" as equivalent to "particulars in regard to such rateable property as may be necessary to make a correct valuation' which are found in section $\tilde{8}$ (3) of the Ordinance. I hold that a notice under the first proviso is unnecessary. I am confirmed in this view by the reading of section 13; clause $(a)$ refers to remitting a rate; clauses (b) and (c) relate to valuation; clause (d) to revaluation; clause (e) to "correction"; clause (f) to "apportionment". The first proviso is limited to interim valuation and to my mind this will only include valuation made under clauses $(b)$ , $(c)$ and $(d)$ . The distinction between a mere error in particulars upon which a valuation is based and a new valuation consequent upon an omission of the property from the roll, or upon subdivision, or upon increase or decrease in value is maintained both in the body of the section and in the provisoes.

The appellant consequently fails upon the grounds of want of notice. His third ground that the effect of a correction cannot be retrospective seems to me to be defeated by the final words of clause $(e)$ viz. "to cause any rate due in respect thereof to be collected according to the corrected roll". The corrected roll relates back to the rates already imposed. If the owner of the rateable property has overpaid the local authority can remit subject to the approval of the Governor under clause $(a)$ , and if he has underpaid it can be collected subject to his right to object under proviso (ii). In this case no objection was taken. The appeal fails on all grounds and is dismissed with costs.