On
9 March 2011, the High Court granted an order of provisional sentence in the
sum of USD2,322,089=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
USD2,322,089=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 HC1201/11,
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 HC1201/11 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
of 2009. However, when the judgment creditor stopped the sale in execution
scheduled for 20 May 2011, S.I.35 of 2009 had been repealed by S.I.57 of 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 of 2011 came into force and
repealed S.I.35 of 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 Rule 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 Rule 457 of the Rules of the High Court 1971. Order 50 Rule
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 Rule 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.
In
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 Rule 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 [Chapter 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….,.
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
Rule 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 by notice 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 Rule 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=.
(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 section 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;
(i)
On a sale in execution;
(ii)
Payment by the debtor upon presentation of the writ; or
(iii)
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 of 2009 by
S.I.57 of 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.
