GOWORA JA: On 9 March 2011 the High Court granted an order of provisional sentence in the
sum of USD 2 322 089.52 against the respondent in favour of Metropolitan Bank
Zimbabwe (Pvt) Ltd. The respondent, who was cited as the defendant, was
in default of entry of appearance to defend. Pursuant to that judgment, the
judgment creditor caused a writ to be issued on 14 April 2011 for the payment of
the debt.
David Tendayi Matipano, the appellant, was the Deputy Sheriff for Harare.
Acting on instructions from the lawyers of the judgment creditor, on 14 April
2011 the Deputy Sheriff attached 634 600 tonnes of tobacco at the premises of
the respondent. On 29 April 2011 the Deputy Sheriff conducted a sale in
execution of the tobacco stocks. However, the proceeds of the sale were
insufficient to settle the judgment debt. Consequently, on 3 May
2011 the Deputy Sheriff attached more tobacco stocks in a bid to raise the sum
of USD 2 322 089. 52. A sale by public auction of the attached stocks was
scheduled for 20 May 2011. Prior to the scheduled date of the sale,
the respondent and the judgment creditor agreed that the stocks were to be sold
by private treaty in order to realise a better price. On 30 May 2011 a
sale by private treaty of the stocks was concluded by the respondent and the
buyer and payment was effected.
On 19 May,
in anticipation of the successful conclusion of the sale, the judgment creditor
instructed the Deputy Sheriff to cancel the sale scheduled for 20 May 2011 and
the sale was cancelled. Subsequently, in June 2011 the Deputy Sheriff, in
letters addressed to the respondent's legal practitioners, demanded payment of
commission in the sum of USD226 297.25. The respondent queried the amount being
demanded for commission. When the amount remained unpaid the Deputy
Sheriff gave instructions to an auctioneer to sell tobacco stocks in its possession
for recovery of the alleged commission. The respondent then paid.
On 3 February 2012 the respondent instituted an
application in the High Court against the Deputy Sheriff in which it demanded a
partial refund of the sum paid as commission. On 27 June 2012 the High
Court issued an order in favour of the respondent in the following terms:
“1.It is declared that the
commission levied by the respondent in case No HC
1201/11 in respect of goods attached on 3 May 2011 under High Court (Fees and
Allowances) Rules S.I. 35/2009 is unlawful.
2. The respondent is ordered to levy his commission on writ of execution against
movable property dated 13 April 2011 in respect of goods attached on 3 May 2011
issued in case No HC 1201/11 in terms of clause 8(1)(c) of the High Court(Fees
and Allowances)Rules S.I. 57/2011.
3. It is ordered that the respondent shall refund the applicant all sums of money
paid in excess of the amounts due to him under clause 8(1)(c) of the High
Court(Fees and Allowances) Rules S.I. 57/2011.
4. The respondent shall pay the applicant's costs.”
It is against this order that the Deputy Sheriff now
appeals. The grounds of appeal are as follows -
1. The learned judge erred in
finding, in effect, that the court had jurisdiction to determine that the fees
the appellant should have been allowed by the Sheriff even though the Sheriff
had himself not been asked to determine them.
2. The learned judge erred in failing to find that the respondent's
application was not properly before the court and more particularly erred -
(a) In finding, in effect, that the Sheriff was not empowered to interpret the
tariff of fees which he is empowered to administer;
(b) In finding that the respondent had the right to approach the
court even though he had failed to require the judgment creditor to have a bill
of costs taxed and
(c) In finding, in effect, that the respondent had locus standi to seek a
declaratory order relating to the fee the appellant could charge the judgment
creditor.
3. The learned judge erred in
finding that the respondent's papers disclosed a cause of action and, in
particular, erred -
(a)In finding, in effect, that
the mere fact that a sum paid is said to have been not wholly due gives rise to
an enforceable claim;
(b)In finding that the
respondent's cause of action was the unjust enrichment of the appellant when no
averment to that effect was contained in its papers;
(c)In failing to find that the
payment made by the respondent was a voluntary one and, accordingly, that any
overpayment made would not have been refundable;
(d) In finding that the High
Court decisions cited by the appellant pertaining to the making of payments
under protest contradict the decision of this Honourable Court also cited by the
appellant;
(e)In finding that a fee raised
in excess of that specified in the tariff is per se unlawful;
(f) In any event, in finding that
the unlawfulness of a sum charged gives rise to a claim for a refund.
4. The learned judge erred in any event in finding that:
(a) The issue to be determined was the choice of law under which the appellant was
entitled to charge a fee instead of the date at which the fee was to be
calculated;
(b) The fee payable to the appellant was incurred at the date of cancellation of
the sale, instead of the date of attachment, of the respondent's tobacco.
Alternatively, erred in failing to
find that the appellant was entitled to charge a fee on the proceeds of the
sale by private treaty as well as on cancellation of the sale of the remaining
tobacco (sic).
It was contended firstly that the matter was not properly
before the High Court because it is not the forum in which disputes concerning
the quantum of a fee payable to a Deputy Sheriff are decided in the first
instance. It was suggested that the respondent should have insisted on a
taxation of the fees due to the Deputy Sheriff before paying or, alternatively,
that the respondent should have paid under protest and sought
taxation. Having failed to do either, it was argued that the respondent
had been left without remedy.
The respondent contends that the money was not due
and further that since the legislation under which the commission was levied
had been repealed then the demand under the repealed legislation is unlawful
and wrongful and in the circumstances is a legal nullity.
WAS THE SHERIFF EMPOWERED TO DETERMINE THE
QUESTION AS TO THE APPROPRIATE TARIFF AND AS A CONSEQUENCE DID THE HIGH COURT
LACK JURISDICTION TO DETERMINE THE DISPUTE.
It is common cause that at the time that the Deputy
Sheriff attached the respondent's tobacco stocks he was entitled to raise his
charges under S.I. 35/2009. However when the judgment creditor stopped
the sale in execution scheduled for 20 May 2011, S.I. 35/2009 had been repealed
by S.I. 57/2011, which came into effect on 13 May 2011. Central to
the dispute was the percentage utilised by the Deputy Sheriff to calculate his
commission for work rendered. It is common cause that when S.I. 57/2011
came into force and repealed S.I. 35/2009 it effectively reduced the
percentage rates that the appellant could charge as commission. Hence the
dispute between the parties translated into which of the two statutory
instruments was applicable at the time that the Deputy Sheriff sought to raise
charges for his commission, and as correctly stated by the learned judge in the
court a quo the dispute raised a question of law and not fact.
I do not accept
that this is a case where the interpretation of the applicability of r 457(3)
comes into question. For the contention that the jurisdiction of the High
Court does not extend to the determination of disputes relating to fees charged
by a Deputy Sheriff, reliance is placed on the provisions of r 457 of the Rules
of the High Court 1971. Order 50 r 457 states that:
“(3) Necessary charges and
allowances for all work necessarily done for which no provision is contained in
such tariff, and every question arising under and relative to the tariff, shall
be determined by the Sheriff.”
The submission by the Deputy Sheriff that the High Court had no jurisdiction to
determine the dispute because of the wording of r 457(3) is devoid of
merit. The Rules are made under the High Court Act and my reading of the
rule in question does not lead me to conclude that the jurisdiction of the
court has been ousted. Contrary to what was argued on behalf of the
Deputy Sheriff, what was before the learned judge in the court a quo
was the applicable statutory instrument.
Once it is accepted that the
issue before the court a quo was to do with the applicable tariff to
be applied in the calculation of the commission, then it stands to reason that
the issue was one of law and firmly within the purview of the High Court. The
High Court was undoubtedly seized with jurisdiction.
IIn my view, the Sheriff,
contrary to the submissions proffered on behalf of the Deputy Sheriff, is not
empowered to decide issues relating to the applicable law that the Deputy
Sheriff is entitled to rely on in levying fees and charges. What r 457
provides for is for the Sheriff to determine the accuracy or otherwise of
charges raised by his deputy. He cannot, and is not empowered to,
determine the applicable statutory instrument. That is an issue which is
solely within the purview of a court.
In any case, the respondent had sought a declaratur,
and the High Court is empowered to issue a declaration as to the rights of
parties. Sections 13 and 14 of the High Court Act [Cap 7:06]
provide in relevant
part:
“13 Original civil jurisdiction
Subject to this Act and any other law, the High Court shall
have full original civil jurisdiction over all persons and over all matters
within Zimbabwe.
14 High Court may determine future or
contingent rights
The High Court may, in its discretion, at the instance of
any interested person, inquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
The Deputy Sheriff did not argue that the High Court does
not have original jurisdiction to issue a declaratur, and to the
extent that the powers of the High Court have not been impugned in that
respect, I hold that the respondent established a cause of action which was
then confirmed in the order that was issued in favour of the respondent.
In respect of the jurisdiction of the High Court, it is trite that the High
Court is a superior court with inherent jurisdiction. In Guwa &
Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 380 GARWE JA
described the powers and functions of the High Court as follows:
“The High Court, however, is
different from the Supreme Court in that it has, in terms of the High Court Act
[Chapter 7:06] full original civil and criminal jurisdiction over all persons
and over all matters within Zimbabwe, subject only to limitations placed either
by the Act itself or by any other law. In terms of s 14 of the High Court Act,
the High Court may inquire into and determine any existing, future or
contingent right or obligation, including the granting of a declaratur.”
DID THE RESPONDENT HAVE THE LOCUS
STANDI TO APPROACH THE COURT FOR THE DETERMINATION OF
THE CORRECT FEE TO BE CHARGED OR WAS THE JUDGMENT CREDITOR THE CORRECT PARTY TO
APPROACH THE COURT FOR RELIEF
The court is unable to accept the contention that the respondent lacked locus
standi to seek a declaratory order with regard to the correct tariff on
which the Deputy Sheriff's fees were chargeable, and that it was the judgment
creditor that was entitled to challenge the fees payable. Charges relating to
execution are due and payable by the party whose property is subject to
execution and the submission that the Deputy Sheriff is only accountable to the
judgment creditor is, in my view, totally without justification and legally
unsound.
Although the execution was instructed by the judgment
creditor, any fees due from and arising out of execution are claimed from the
judgment debtor. It is also indisputable that despite the suggestion that the
respondent lacked the necessary locus standi to sue for a
refund, the commission in question was paid by the respondent and not the
judgment creditor. The Deputy Sheriff never sought payment of the costs
of execution from the judgment creditor. The respondent had an interest in the
recovery of fees paid by it in excess of what was lawfully due and
payable.
DID THE RESPONDENT ESTABLISH A CAUSE OF ACTION
FOR UNJUSTIFIED ENRICHMENT, AND WAS THE MERE PAYMENT OF A SUM SAID NOT TO BE
WHOLLY DUE GIVE RISE TO AN ENFORECEABLE CLAIM
It is contended on behalf of the Deputy Sheriff that, even
if the High Court had been correct in its finding that the matter was properly
before it, it erred in finding that the papers disclosed a cause of
action. The appellant submitted that the only basis upon which a refund
could found a cause of action of action was unjust enrichment and only the
judgment creditor had the locus standi to claim on that basis. It
was argued further that the onus was on the respondent to prove unjust
enrichment and there is no such averment anywhere in the papers before the High
Court. Even if it was accepted that the sum was not wholly due, so it is
argued, the appellant could not have been unjustly enriched if the money was
paid voluntarily.
The respondent has refuted suggestions by the Deputy
Sheriff that the papers do not establish a cause of action and points to the
averments in the founding and replying affidavits where the dispute over the
commission due to the Deputy Sheriff is chronicled and the position taken by
the respondent as to the illegal nature of the demand is set out. The
respondent maintains that the Deputy Sheriff had used the wrong law in
calculating his commission and that the monies paid to him were not legally
justifiable and therefore that the respondent was entitled to a refund.
The High Court found that the respondent had
established a cause of action on the papers. In Abrahamse & Sons
v S.A. Railways and Harbours 1933 CPD 626 stated at 637:
“The proper legal meaning of the expression
'cause of action' is the entire set of facts which gives rise to an enforceable
claim and includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim. It includes all that a plaintiff must set
out in his declaration in order to disclose a cause of action. Such cause of
action does not 'arise' or 'accrue' until the occurrence of the last of such
facts and consequently is sometimes loosely spoken of as the cause of
action.”
From the facts set out in the founding and replying
affidavits the respondent was able to state that that the fee charged was not
wholly due. The Deputy Sheriff, in my view, understood the claim as it was
presented that he had been unjustly enriched at the expense of the respondent.
As was stated by the learned judge in the court a quo:
“…the applicant averred that the
respondent used the wrong piece of legislation to claim commission purportedly
due to it. The cause of action was the unjust enrichment of the respondent by
the payment of a claim that it was not legally entitled to receive.”
The issue before the court a quo was whether the
payment of a sum which is not wholly due gives rise to an enforceable
claim. In Dew v Parsons (1819) 2 B & Ald 562, 106ER 471, an
attorney was held entitled to set off against a claim by a Sheriff the excess
amount which he had paid to the Sheriff for the issue of warrants over what the
Sheriff was legally entitled to charge. At issue was whether the Sheriff
was entitled to retain sums which he had no legal right to demand, but the sums
were demanded in return for the rendering of a service, namely the issuing of
warrants. The decision was rationalised on the basis that the payments
were exacted colore officii, a concept which emerged more clearly in
later cases. This concept was thus described by WINDEYER J in Mason v
New South Wales (1959) 102 CLR 108 at 140:
“Extortion by colour of office
occurs when a public officer demands, and is paid money that he is not entitled
to, or more than he is entitled to, for the performance of his public duty.
Examples of such exactions are over tolls paid to the keepers of toll-bridges
and turnpikes, excessive fees demanded by sheriffs, pound keepers, & etc.
The parties were not on an equal footing; and generally the payer paid the sum
demanded in ignorance that it was not due.”
WAS THE PAYMENT BY THE RESPONDENT MADE
VOLUNTARILY AND AS SUCH WAS THE COURT CORRECT IN FINDING THAT A REFUND WAS DUE
FROM SUCH PAYMENT
The learned judge in the court a quo was clearly alive to the fact
that the refund to the respondent could only follow a declaration as to the
correct law under which the Deputy Sheriff was entitled to levy his fee, and as
a consequence the lawfulness or otherwise of the demand for payment of commission.
If one party has the power to say to another, what you require will not be done
except upon the conditions that I choose to impose, that party should not be
allowed to contend that the parties acted on an equal footing. Such a
situation does not fall within the category of payments made voluntarily.
“If a person pays money, which he is not bound to pay,
under the compulsion of urgent and pressing necessity or of seizure, actual or
threatened, of his goods he can recover it as money had and received. The money
is paid not under duress but in the strict sense of the term, as that implies
duress of person, but under the pressure of seizure or detention of goods which
is analogous to that of duress.”
Per LORD READING CJ in Maskell v Horner [1915] 3
KB 106, [1914-15] All ER Rep 595.
This type of payment was distinguished from one made
under threat of a suit, as the payer under those circumstances has the
opportunity to defend the suit. In South of Scotland Electricity
Board v British Oxygen Co Ltd (No 2) [1959] All ER 225, LORD MERRIMAN, at
240 said;
“It is sufficient to say that, in Maskell v Horner
([1915] 3 KB 106 at 119, [1914-15] All ER Rep 595 at 598), LORD READING CJ,
referring to these authorities, and in particular to the advice given by WILLES
J, in Great Western Ry. Co v Sutton (1869) LR 4 HL 226 at 249) where
that learned judge said that he had always understood that when a man pays more
than he is bound to do by law for the performance of a duty which the law says
is owed to him for nothing, or for less than he has paid, there is a compulsion
or concussion in respect of which he is entitled to recover the excess by condictio
indebiti, or action for money had and received said, that such claims
made in this form of action are treated as matters of ordinary practice and
beyond discussion.”
The court a quo made a finding that the cause of
action of the respondent's claim was the unjustified enrichment of the Deputy
Sheriff by the payment of a claim to which he was not entitled. To this end,
it was contended that the Deputy Sheriff could not have been unjustly enriched
if the payment was voluntary. In deciding this issue the court had
occasion to consider the principles set out in the following authorities, National
Railways of Zimbabwe v Coghlan, Welsh & Guest 1984 (2) ZLR 229 (H), Pymor
Investment (Pvt) Ltd v Frank Pantony (Pvt) Ltd 1996 (2) ZLR 357 (H) and Ellis
NO v Commissioner of Taxes 1994 (1) ZLR 423 (S). Commenting on the
cited authorities the learned judge in the court a quo had this to
say:
“The above decisions contradict the view adopted by the
Supreme Court in Ellis NO v Commissioner of Taxes 1994 (1) ZLR 423
(SC) at 439B-H where GUBBAY CJ stated:
'I strongly support the opinion
of LORD GOFF supra at 760h that:
In the end, logic appears to
demand that the right of recovery should require neither mistake nor
compulsion, and that the simple fact that the tax was exacted unlawfully should
prima facie be enough to require its repayment.'
Put differently, recovery is
grounded on the unlawfulness and nullity of the demand and not on any mistaken
belief of the payer.”
The Deputy Sheriff suggested before us that the respondent
had not paid under protest and further that the court a quo did not
make a finding that it had done so. It was further argued that the respondent
had not proffered evidence to the effect that payment was made and accepted on
condition that if found not to be due, it would be recovered.
The learned judge in the court a quo was alive to
the fact that the respondent had not pleaded duress or mistake as regards
payment of the commission. Nevertheless, he found that due to the
illegality of the demand by the Deputy Sheriff the payment could not
stand.
The principle that the authorities establish is that
payments not lawfully due cannot be recovered. It is accepted now that
money which a party has been wrongfully made to pay, whether under compulsion,
or in circumstances in which he is unable to resist the imposition, may be
recovered. Money paid as a result of actual or threatened duress to the person,
or actual or threatened seizure of a person's goods, is recoverable. See Maskell
v Horner [1915] 3 KB 106, [1914-15] All RE Rep 595. The concept of
duress has been widened to include economic duress. Money paid to a
person in a public or quasi-public position to obtain the performance by him of
a duty he is bound to perform for nothing or for less than the sum demanded is
recoverable to the extent that he is not entitled to it. Such payments
are often referred to as having been demanded colore officii.
IS A FEE RAISED IN EXCESS OF WHAT IS SPECIFIED
IN THE TARIFF PER SE UNLAWFUL
AND DOES SUCH UNLAWFULNESS GIVE RISE TO A CLAIM FOR A REFUND OF SUCH PAYMENT
The last issue for consideration is whether the court erred
in ordering a refund in favour of the respondent. The Deputy Sheriff argued
that the fact that the sum claimed was not wholly due would not have
necessarily rendered the claim unlawful. The respondent disputes this
contention and submits that the demand for commission under repealed
legislation was unlawful and that as a consequence both the demand and the
payment created neither rights nor obligations on either of the parties.
The Deputy Sheriff sought to argue that the High Court
erred in relying upon the judgment in Ellis supra as it was not
authority for the proposition that the appellant's claim was a nullity.
It was submitted that the learned CHIEF JUSTICE in the case of Ellis referred
to a “limited restitutionary right”.
The Deputy Sheriff cannot be correct in his reading of the
judgment. It is clear that the rationale of the remedy as found by the
learned CHIEF JUSTICE is the illegality of the demand. He stated as
follows:
“Although LORD BROWNE-WILKINSON
agreed with LORD GOFF's reasons, the emphasis of his speech was not so
obviously dependant on the special position of governmental or public bodies.
He underscored rather the fact that money paid under an ultra vires
demand is paid without consideration and that the relative positions of the
State and the citizen are unequal, even in the case of a major financial
institution like Woolwich. He explained at 781e:
'… money paid on the footing that
there is a legal demand is paid for a reason that does not exist if that demand
is a nullity. There is in my view a close analogy to the right to recover money
paid under a contract the consideration of which has wholly failed.'
And continued at 782c-d:
'The money was demanded and paid
for tax, yet no tax was due; there was a payment for no consideration. The
money was demanded by the state from the citizen and the inequalities of the
parties' respective positions is manifest… there are, therefore, in my judgment
sound reasons by way of analogy for establishing the law in the sense in which
LORD GOFF proposes.'
With much deference the want of
consideration factor seems to me to mask the somewhat true rationale of the
relief-which was the nullity of the demand that flowed from its ultra vires
or unlawful nature.”
Even though the Deputy Sheriff seeks to place a narrow
interpretation on dictum in the Ellis judgment and restrict it to
those situations where a taxpayer would have paid a tax under an invalid law, I
do not understand the judgment of the learned CHIEF JUSTICE to advocate such a
narrow application of the principle. It cannot be a correct
interpretation of the principle to confine a right of recovery only to those
cases where a taxpayer is compelled to pay tax under an unconstitutional
law. I am further fortified in this view by the remarks of LORD GOFF in Woolwich
Building Society (1992) 3 All ER 737, at 761e-762d as follows:
“… I agree that there appears to
be a widely held view that some limit has to be
placed on the recovery of taxes paid pursuant to an ultra vires
demand. I would go further and accept that the armoury of common law defences,
such as those which prevent recovery of money paid under a binding compromise
or to avoid a threat of litigation, may be either inapposite or inadequate for
the purpose; because it is possible to envisage, especially in modern taxation
law which tends to be excessively complex, circumstances in which some very
substantial sum of money may be held to have been exacted ultra vires
from a very large number of
taxpayers.
At this stage of the argument, I
find it helpful to turn to recent developments in Canada. First, in a notable
dissenting judgment (with which LASKIN CJC concurred) in Nepean Hydro
Electric Commission v Ontario Hydro (1982) 132 DLR (3d) 193
DICKSON J subjected the rule against recovery of money paid under a mistake to
the law to a devastating analysis and concluded that the rule should be
rejected. His preferred solution was that, as in cases of mistake of fact,
money paid under a mistake of law should be recoverable if it would be unjust
for the recipient to retain it.”
It cannot be disputed that these are the principles that
the learned CHIEF JUSTICE GUBBAY considered and applied in Ellis NO v
Commissioner of Taxes (supra) wherein he stated:
“To my mind, the view that there is a general right to
restitution of monies paid following upon an ultra vires and illegal
demand, and so a right to the recovery of interest thereon, is both attractive
and compelling. For such a principal payment would have been made either in
consequence of a perceived presumption on the part of the payer of the
constitutional validity of the demand and the holding out of such legality by
the Legislature, or on account of the prospect of the payer being subjected to
penal interest were his opinion of the illegality of the demand ultimately
ruled to be incorrect. It matters not which it be, since payments made under
unconstitutional legislation cannot be deemed voluntary. In short, an ultra
vires demand alone by a government body provides ground for restitution. It
operates outside the field of mistake and focuses on the position of government
as payee rather than on the circumstances of the payer.”
I therefore would find that on the dictum in Ellis's
case these courts have departed from the age old principle that monies paid
under a mistake of law cannot be recovered. Once it is established that the
monies were paid under an ultra vires law, then the payer has a right
to recover. Such payments would constitute illegal payments and on that
basis they can be recovered and the court a quo was
correct in making an order for the refund of the excess on the fees paid to the
appellant by the respondent.
WHETHER THE FEE TO BE CHARGED BY THE DEPUTY
SHERIFF IS CALCULATED AS AT THE DATE OF ATTACHMENT OR THE DATE OF SALE OR
CANCELLATION THEREOF
It was contended on behalf of the Deputy Sheriff that, in terms of para 8(1)(c)
of the tariff, a fee is earned by a Deputy Sheriff by the attachment of the
goods and not by the withdrawal of the writ by the judgment creditor.
This submission is premised on the provisions of the High Court Rules 1971,
Order 40 r 327 which provides as follows:
“327. Writ may be withdrawn or suspended
(1) A writ of execution may, on payment of the fees
incurred, be withdrawn or suspended at any time bynotice to the sheriff or his
deputy by the party who has sued out such writ.”
Contrary to the assertion by the Deputy Sheriff, I do not
read in that provision an entitlement by the Deputy Sheriff to payment of fees
based on the mere attachment of goods, whether movable or immovable.
Rather, Order 40 is concerned generally with the process of attachment and r
327 permits the withdrawal or suspension of a writ at any time and seeks to
protect the payment of fees to the Deputy Sheriff for any work done in
connection with the writ. It does not set out the manner in which the
Deputy Sheriff is obliged to levy and calculate his fees. The inescapable
conclusion is that the applicable law in calculating the commission is the tariff
of fees set out in the High Court (Fees and Allowances) (Amendment)
Rules.
In order to resolve the dispute as to which is the relevant
tariff, it is necessary to have regard to the specific provisions of the
tariff. Section 8 of the tariff provides in relevant part:
“(1) in respect of execution -
(a) When a writ is paid on presentation, ten per centum of the
amount of the writ, with a minimum of…
(b) When a writ is withdrawn by the judgment creditor, or the judgment debtor's
estate is placed under sequestration or liquidation before any movable property
has been attached, a fee of USD10.00.
(c) When a writ is withdrawn or suspended by the judgment creditor, or the judgment
debtor's estate is placed under sequestration or liquidation after movable
property has been attached but before sale, ten per centum of the
value of the property attached, but such value shall not exceed the amount
directed to be recovered.
(d) When a writ is paid by the judgment debtor to the deputy sheriff after movable
property has been attached but before sale, ten per centum of the
amount so paid.
(e) After sale in execution ten per centum of the net amount recovered, or
if the Deputy Sheriff acted as auctioneer, ten per centum of that
amount.
(2) No fee shall be allowed on
the value of movable property attached but subsequently claimed by a person
other than the judgment debtor and released in consequence to that claim,
unless the property was attached at the express direction of the judgment
creditor.”
The High Court held that s 8(1) lists all the situations in
which the Deputy Sheriff is entitled to claim his commission. The learned
judge also found that the fee accrues on the date on which the event listed in
the section occurs. The fee does not accrue through the
attachment, which is a process comprising various events. He was
correct. The fee accrues after the occurrence of any of the following
events; on a sale in execution, payment by the debtor upon presentation of the
writ, or withdrawal or suspension of the writ by the judgment creditor.
In this case the writ was withdrawn by the judgment creditor which event
triggered the calculation of the fees due to the Deputy Sheriff. As the
withdrawal of the writ was effected after the repeal of S.I. 35/09 by S.I.
57/2011 it stands to reason that the fees had to be calculated in terms of the
provisions of S.I. 57/2011 which governed that event.
I find the contention by the Deputy Sheriff that the fee
accrued as a result of the attachment legally unsustainable. The learned
judge found that the Deputy Sheriff had levied fees under the wrong statutory
instrument and determined that the respondent was entitled to a refund.
The order granted was a declaration that the commission levied by the appellant
was unlawful.
DISPOSITION
The appeal has no merit. It is therefore dismissed with costs.
MALABA DCJ: I agree
ZIYAMBI JA: I agree.
Messrs Dhlakama B Attorneys, appellant's
legal practitioners
Musemburi & Muchenga,
respondents' legal practitioners
