KAMPUNI YA UCHUKUZI MWANZA LIMITED v GABRIEL C. RIWA 1986 TLR 40

 

KAMPUNI YA UCHUKUZI MWANZA LIMITED v GABRIEL C. RIWA 1986 TLR 40

(HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

24th March 1987.

MISCELLANEOUS CIVIL APPEAL 19 OF 1986 B

Flynote

Civil Practice and Procedure - Attachment and Sale (Broker and Fees) Rules - Court broker paid

more than the value claimed in the suit - Whether proper

-Headnote

C The respondent, a court broker, was awarded shs. 2,125,000/= as costs payable to him under

the Attachment and Sale (Broker and Fees) Rules, G.N. 298/1964 as amended by G.N. 105/1984.

This amount was by far more than the value of the attached property which was Shs. 250,000/=.

The appellant applied to the High Court for revision of D computation of the amount which

was worked out by the Resident Magistrate's Court.

Held: There is no material error on the merits of the case as conducted by the trial magistrate. E

Case Information

Application dismissed.

Case referred to.

l. Matemba v Yamulinga [1968] E.A. 643. F

J. Lyimo, for the applicant

Kahangwa, for the respondent.

[zJDz]Judgment

G Mwalusanya, J.: This is an application for revision filed by the applicant Kampuni ya

Uchukuzi Mwanza Ltd. (KAUMA) against the respondent Gabriel C. Riwa concerning the

judgment of the Resident Magistrate's H Court Mwanza which awarded the said respondent

shs. 2,125,000/= as costs payable to him as a Court-broker under the Attachment and Sale

(Broker and Fees) Rules GN. 298/1964 as amended by GN. 105/1984. The application for

revision is under s. 44(1)(b) of the Magistrate's Courts Act No. 2 of 1984. I

1986 TLr p41

MWALUSANYA J

A For the respondent Mr. Kahangwa took the first point that the application is misconceived

because under s.79(l) of the Civil Procedure Code Act No. 49 of 1966 the powers of revision of

the High Court are restricted to matters of jurisdiction only. And he cited the decision of this

court in Matemba v Yamulinga [1968] E.A. 643(T) by Mustafa J. B For the applicant Mr. Lyimo

conceded that the application is based on merits of the case and not on the question of

jurisdiction.

But he contended that nevertheless the application was in order because under s.44(1)(b) of the

Magistrate's Courts Act there is a section that provides that the High Court may revise

proceedings of subordinate courts: C

'if it appears that there has been an error material to the merits of the case involving

injustice'.

And on this point I agree with counsel for the applicant Mr. Lyimo that the High Court has been

given additional powers D under the Magistrate's Courts Act over and above those contained in

the Civil Procedure Code. This is buttressed by s.79(2) of the Civil Procedure Code which

provides in black and white thus: E

Nothing in this section shall be construed as limiting the High Court's power to exercise

revisional jurisdiction Lunder the Magistrate's Courts Act.

F Therefore that section makes it crystal clear that the High Court has additional powers of

revision under the Magistrate's Courts Act.

So the crucial point to decide in this application is as to whether there is some material error on

the merits of the case as conducted by the trial magistrate. This calls upon this court to construe

Para 1 and 2 of the Second Schedule of the G Attachment and Sale (Brokers and Fees) Rules

GN. 298 of 1964 as amended by GN.105 of 1984. These two paragraphs read:

H Para 1: For attachment or taking possession of movable property and keeping possession

of the same for 15 days or part thereof, when the estimated value of the property (in accordance

with the executing officer's inventory furnished under Rule 5) -

(a) Does not exceed shs. 400/= -shs. 60/=. I

1986 TLR p42

MWALUSANYA J

A (b) Exceeds shs. 400/= - shs. 60/= for the first shs. 400/= and 10/= for each

subsequent shs.1000/= or part thereof.

Para 2: For keeping possession of movable property after the first 15 days, for

every shs. 100/= of the estimated value of the B property and for each day or part thereof -

shs.5/=, but so that the fee shall not be less than shs.2/= nor more than shs.20/= per day.

C Those are the contents of the two paragraphs that were pertinent to the matter in issue at

the trial.

Now it was common ground at the trial that the value of the attached property was

shs.250,000/= Computation of the D fees payable to the Court-broker under para 1 of the

Second Schedule of the Rules did not generate any controversy, and this was for the first 15

days. It was computed thus:

(a) For the first shs.400/= - shs.60/=

E (b) For the (shs.250,000/= - shs. 400/=) shs. 249,600/= the formula is:

shs. 249,600 x 10 = shs. 2,020,000/=

100

F Thus the total fees payable to the Court broker under para one was shs. 60 + shs. 2,496/= and

that comes to shs. 2,556/=.

The main contention was centred under para 2 and of the Rules. As for the number of days the

property attached was G under custody it was conceded by both parties that it was 419 days.

Now if you minus the first 15 days paid under para one above, you remain with 404 days. The

trial court was of the view that the correct formula for the computation of fees payable to the

Court-broker under Para 2 was:

H 250,000 x 2 x 404 = shs. 2,020,000/=.

100

The trial magistrate said that the sum payable could not be less because the fees were formulated

by the legislature to I enable the Court-broker to manage to keep the attached property in safe

1986 TLR p43

MWALUSANYA J

A custody for example enabling him to pay a watchman to look after the property.

Mr. Kahangwa counsel for the respondent at the hearing of this application supported that

contention.

However at the trial and at the hearing of this application counsel for the applicant Mr. Lyimo

strongly objected to that B formula adopted by the trial magistrate in computing the fees

payable to the Court-broker under Para 2 of the Rules. He pointed out that the correct formula

was that: You divide by 100 the value of the property and then multiply by five. You then get

(shs. 12,500/=) what would otherwise be payable in one day if there was no proviso. He went on

to say that by virtue of the proviso the amount payable per day is limited to a minimum of

shs.2/= and a maximum of shs.20/=. In this C case Mr. Lyimo chose to play the maximum rate

of shs.20/= and so concluded by saying that for 404 days the fees payable would be 20 x 404 =

shs.8,080/= only. And plus shs.2560/= from the first paragraph you get a total of D shs.10,636/=

which would be payable to the Court-broker. Mr. Lyimo also argued that awarding

shs.2,125,000/= to the Court-broker would be ridiculous and anamolous as it would be more

than the value of the amount claimed in the suit. E

In the final analysis the issue posed for construction by this court is simply as to whether the

phrase in the Rules 'the fee shall not be less than shs.2/= nor more than shs.20/= per day' pertains

to the whole estimated value of the property or to the shs.100/= only.

It is a settled rule of interpretation that where the language of a statute is clear and explicit the

courts must give effect to it F whatever may be the consequences, for in that case the words of

the statute speak the intention of the legislature - see Graies on Statute Law 11th Ed. at p. 64.

For that reason I cannot accept what was contended by Mr. Lyimo on behalf G of the

applicants that the fees payable to a Court-broker cannot by any standards exceed the amount

claimed in the suit.

In my considered opinion whether the fees payable to the Court-broker exceed the claim in the

suit is of little importance H so long as, that is the intention of the legislature. Now reading the

whole of para 2 of the Second Schedule very closely, one cannot fail to see that the proviso

stating that a minimum fee of shs.2/= and a maximum fee of shs.20/= is payable, pertains only to

the shs.100/= of the value of the property and not to the value of the whole property. To

paraphrase that paragraph, it reads: 'For every shs.100/= of the estimated value of the property

you pay shs.5/= I

1986 TLR p44

A but so that the fee shall not be less than shs. 2/= nor more than

shs.20/= per day. The proper construction therefore of that phrase would reveal that it pertains

to shs.100/= only and not to the value of the whole property and so I hold.

B And on policy grounds it would also appear that the trial magistrate made a valid point.

When he took the rate of shs.2/= as the minimum fees payable for every shs.100/=, it turned out

that per day the court-broker was paid shs.5,000/=. That is not an extraordinary huge sum of

money in these days of inflation as to make someone raise eyebrows. I agree with the trial

magistrate that to keep safe custody of an item like a vehicle is an expensive undertaking. C On

my part I have no qualms over the computation of the fees payable.

In the event the application fails as I find no error in the ruling of the trial magistrate to warrant

interference by this court. The application is accordingly dismissed with costs. D

Appeal dismissed.

1986 TLR p44

E