Court name
High Court of Tanzania

Kampuni Ya Uchukuzi Mwanza Limited  vs Gabriel C. Riwa () [1987] TZHC 3 (01 March 1987);

Law report citations
1986 TLR 40 (TZHC)
Media neutral citation
[1987] TZHC 3
Coram
Mwalusanya, J.

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

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

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

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.

E