KCB BANK T LTD VS UNYAGALA AUCTION MART LTD AND RODESI MASELE MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 261 OF 2014 (Arising from Commercial Cause No. 15 of 2013) KCB BANK TANZANIA LIMITED................................... APPLICANT VERSUS UNYAGALA AUCTION MART LIMITED COURT BROKERS .........................RESPONDENT AND RODESI MASEVELE t/a MASEVELE COMPANY MAHMOUD OMARY KUBBO ......... J/DEBTORS 19th May & 18th June, 2015 RULING MWAMBEGELE, J.: The applicant herein has knocked on the doors of this court seeking for various orders, namely: (i) That the Honourable court be pleased to examine the Ruling of the Taxing Master dated 11th September, 2014 and set aside the taxed amount of Tshs. 7,153,204/= for being contrary to the requirement of law, justice and for being excessive; (ii) The Honourable court be pleased to revise the ruling and find that upon attachment and sale of the attached property the court broker was bound to reasonably estimate the value of the property on the basis of which the fee would have been assessed; (iii) The Honourable court be pleased to revise the Ruling of the Taxing Master dated 11th September, 2014 and order upon attachment and subsequent sale, the court broker was not entitled to both attachment fee and sale fees; (iv) That this Honourable Court be pleased to grant costs of this application; and (v) Any other order this Honourable Court may deem fit to grant. The application has been made under the provisions of rule 12 (2), (3) and Item 2 (b) of the second schedule to the Court Brokers and Process Servers (Appointments, Remuneration and Discipline) Rules, 1997 as amended by GN No. 176 of 2008, sections 95 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the CPC") and Item 21 of Part III of the First Schedule to the Law of Limitation Act, Cap. 89 of the Revised Edition, 2002. An affidavit in support of the application was sworn by Ms. Annette Kirethi, learned advocate. The affidavit has details to the effect that the court broker, having attached and sold the judgment debtor's property at Tshs. 5,800,000/=, he presented his Bill of Costs of Tshs. 6,392,836/= as the 3% of the principal amount of Tshs. 213,061,228/95. It is further deposed that the Taxing Master's failure to accurately interpret the decreed amount of Tshs. 213,061,228/95 privileged the court broker to acquire amount higher 2 than the actual amount of Tshs. 5,800,000/= realized out of the sale of attached property. A counter affidavit thereto sworn by one Abel Kisanga disputed the statements in the affidavit of Ms. Kirethi. At the hearing, the applicant was represented by Ms. Hawa Lweno, learned counsel whereas the respondent was represented by Mr. Mwakasala, learned counsel. They both, in compliance with rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012, had filed their respective skeleton written arguments which I had ample time to look at and digest. The applicant's main contention as I can gather from the supporting affidavit and submissions of the applicant's counsel is that the learned Taxing Master erred in basing the computation of attachment fee on the decretal sum of Tshs. 213,061,228/=. Ms. Lweno's contention is that the interpretation of item 2 (b) does not go to the root of an amount awarded in the decree. She maintains that the interpretation should have been literal and the Taxing Master erred by interpreting the provision as he wanted. She made reference to the case of Kampuni ya Uchukuzi Mwanza Limited Vs Gabriel C. Riwa [1986] TLR 40 to reinforce the point that where the language of the statute is clear and explicit, the court must give effect to it whatever may be the consequences. Mr. Mwakasala, learned counsel for the respondents, has made submissions against the application. The gist thereof is that the taxation of the 3 attachment fee was right though he agrees that the estimated value of the attached property was between Tshs. 5,000,000/= and 7,000,000/= and that it was sold at Tshs. 5,800,000/=. The issue which this ruling must answer is whether the Taxing Master applied a correct principle in arriving at the amount he taxed as attachment fee. At the outset, I must state that the Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, 1997 as amended in 2008 (hereinafter "the Court Brokers' Rules") are the rules that govern the rates of remuneration for a court broker's work done. As was rightly stated in the case of the Registered Trustees of Cashewnut Industry Development Fund Vs Cashewnut Board of Tanzania, Civil Reference No. 4 of 2007 (CAT - unreported), that: "... the taxation of costs not being a mathematical exercise but entirely a matter of opinion, the court will not interfere with the award as somewhat too high or too low: It will interfere if the award is too high or so low to amount to an injustice to one party or another...". Equally, it is trite law noteworthy at this juncture that the court will interfere with the decision of the Taxing Master only where on the face of it, it appears that he applied a wrong principle in arriving at an award. That this is the law was held in Pardhan Vs Osman, [1969] 1 EA 528 (HCT) and George 4 Mbuguzi Vs A. S. Maskini [1980] TLR 53. In George Mbuguzi, it was held (I quote from the headnote thereof): "A decision of a taxing officer or master will be interfered with by a court only when the court is satisfied that the decision was arrived at upon an application of a wrong principle or wrong consideration". Perhaps the reason why such powers should be left within the realm of the Taxing Master was sufficiently explained by this court (Hamlyn, J.) in the Pardhan case (supra) as follows: "... judges, lacking the experience of taxing masters, will not interfere with the quantum allowed as an instruction fee upon taxation, unless it is manifestly so high or so low that it calls for interference by reason of some misdirection having occurred or some wrong principle having been adopted." For the avoidance of doubt, I am alive to the fact that the foregoing holding in the Pardhan case was in reference to the powers of taxing masters in respect of instruction fees. However, I am certain in my mind that the principle is applicable to the present instance as well. Thus, in my well considered view, the court will not interfere with the quantum allowed by the Taxing Master as court broker's fee upon taxation, unless it calls for 5 interference by reason of some misdirection having occurred or some wrong principle having been applied. In the present application, it is not disputed that the respondent, in executing the decree, had attached the said property; Plot No. 169 Block 10 Kibada, Dar es Salaam under CT No. 103014. The only dispute is in the aspect of an amount awarded to them by the Taxing Master as fee for such attachment. The applicant complains that the amount awarded was higher; even higher than the amount realized out of the sold property. It is also not disputed that the amount awarded by the Taxing Master was in respect of attachment exercise and therefore, as presented in the bill, were regarded as attachment fee. The contention arises from the principle and an interpretation of the said item 2 (b) of the Court Brokers Rules by the Taxing Master. For clarity, let the Taxing Master's words paint the picture; as stated at pages 2 - 3 of the typed judgment: "The amount prayed in the execution of a Decree is Tshs 213,061,728/= and as to the estimated amount to court brokers report after attachment is between Tshs 5,000 - 7,000 (sic) and as to his final report after sale the Highest Bidder pay Tshs. 5,800 (sic) in purchase of that plot. My interpretation of [item] 2 (b) goes to the root of an amount awarded in a decree that if the said amount exceeds 5 million then 3% of that amount ought to be attached as attachment fee. 6 Therefore it is my finding that the court broker is entitled to 3% of the amount awarded in the decree which is Tshs. 6,391,836/= and not 3% of the estimated amount after attachment". Item 2 (b) of the Court Brokers' Rules which was also quoted by the Taxing Master in his ruling provides thus: "For attaching immovable property where the amount of the decree in execution of which the property is attached (a) N/A (b) Where the estimated value exceed 5 Million. ..................................... 3% Looking at that extract in the light of the above quoted provision, it is not hard to reckon that indeed the Taxing Master arrived at the figures upon an incorrect interpretation of the said item. Thus, despite his being aware of the "estimated" value of the property, he proceeded to take his interpretation of the said item that it goes to "the root of an amount awarded in the decree" in blatant disregard of the amount of the property attached. I maintain this view because, the amount decreed cannot be "estimated" or rather, the value of the decree is never estimated but always certain after the court has made its judgment either granting the prayers as prayed or with adjustment upon the dictates of justice. 7 Also, the fee that a court broker claims is for the exercise of attachment in order to realize the amount decreed in the Judgment. That exercise does not, in any way confer rights, to the realized amount to the Court Broker equal to that of the Decree Holder so as to warrant calculating the said 3% or otherwise on the decreed amount. Accordingly since the fee relates to the attachment exercise, the correct interpretation is that the amount taxed must be based on the estimated value of the property subject of attachment and not otherwise - see Costantino Shiiogiie Vs Director Morogoro Municipal Council Miscellaneous Application No. 175 of 2002 (unreported); the decision of this court (Rugazia, J.). In the present instance, I find that the Taxing Master, indeed, had applied a wrong principle in awarding the amount of Tshs. 6,391,836/= as the 3% of the value of the decree instead of computing the 3% on the basis of the estimated value of the attached property. As a result, the interpretation arrived at an absurd outcome in that the ruling conferred benefit to the court broker. Thus, the decree holder by virtue of the ruling of the Taxing Master, is supposed to dig further into its pockets to top up the amount realized in execution by the court broker in order to satisfy his (court broker's) fee. This, in my well considered view, offends both the ends of justice and logic. I think the maker of the Rules; His Lordship the Chief Justice, did not intend this rule to be given an interpretation that would result into such absurdity and injustice. I find and hold that the 3% in Item 2 (b) of the second schedule to Court Brokers Rules refers to the estimated value of the attached property; it does not refer to the decretal sum. 8 In the upshot, I allow this application and remit the matter to the Taxing Master so that the ailment can be rectified as demonstrated hereinabove. For the reason that none of the parties can be blamed for this turn of events as well as the peculiar circumstances of this case, I would let each party bear its own costs in this application and, later, before the Taxing Master for rectification of the ailment. Order accordingly. DATED at DAR ES SALAAM this 18th day of June, 2015 J. C. M. MWAMBEGELE JUDGE 9