IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 846 OF 2005

BETWEEN
:

IN
THE MATTER OF SWAZI SIDILICK PHIRI … APPLICANT

-and-

THE
MALAWI REVENUE AUTHORITY …………RESPONDENT

CORAM : HON.
JUSTICE A.K.C. NYIRENDA

Mwangwera;
Counsel for the Applicant

Daka;
Counsel for the Respondent

Nakweya;
Court Interpreter

R
U L I N G

HON.
NYIRENDA, J.

By
Originating Summons under Order 8 r 3 of the Rules of the Supreme
Court the applicant herein seeks an order that there be a
review of
the evaluation of duty payable on a motor vehicle that he imported
into the country in January 2005.

The
crax of the matter, in brief, is that the applicant imported a Toyota
Rav 4 automatic vehicle which he says he bought in the
United Abab
Emirates popularly known as Dubai around us. He says he paid U$1600
for it. When the vehicle came into Malawi the
respondent engaged an
independent valuer who advised the applicant that the value of the
vehicle should be placed at U$6155.97.
The respondent went on to
determine duty on this basis. It is this evaluation that the
applicant wishes to challenge.

I
will not myself at this stage go beyond what is necessary for the
determination of the present application.

The
Customs and Excise Act Cap 42:03 provides in Section 121(1):

“Section
121(1) If a dispute arises between the owner of any goods and the
Controller as to the amount of duty payable on those goods,
the owner
may, if he pays the amount demanded as duty by the Controller or
furnishes security to the satisfaction of the Controller
for the
payment of that amount, within three months after the payment or
furnishing of security, appeal to the Special Referee
against such
demand.”

Pursuant
to this provision the Minister has by General Notice No 160/1970
appointed Special Referee as follows:

“The
Senior Resident Magistrate at Blantyre has been appointed to be
Special Referee for the purpose of Section 121 of the Act.”

I
do not think these provisions should present us with any difficulty.
The position, on a clear reading of these provisions,
is that where
the amount of duty is not acceptable, the complainant ought to take
the matter before the Special Referee as designated.

Often
it is thought jurisdictional provisions like the ones we are
concerned with here are unconstitutional because they have an

appearance of ousting the original unlimited jurisdiction of the
High Court, vide Section 108(1) of the Constitution. This
apprehension is wrong. Provisions of this nature are for convenience
and are meant to exhaust primary remedies to avoid every kind
of
litigation commencing in the High Court. In this way the High Court
is reserved for much more serious and complex litigation.
There is
no justification in my view for a matter that could well have been
brought before a magistrate court, to jump to the
High Court.
Moreover what should be borne in mind is that the High Court will
always be there in case the complainant is still
not happy with the
determination of the Magistrate Court.

The
complaint by the applicant falls within those matters which should be
dealt with under Section 121 of the Customs and Excise
Act to be
brought first before the Magistrate Court.

What
I might say to the applicant is that infact before the magistrate
court he is entitled to seek review of the assessment, unlike
what he
seeks from this court; that the matter be referred to an independent
valuer. This was bound to be a long winded process
because the
independent valuer would only review the value and refer his or her
findings to the respondent again for determination
of appropriate
duty. I hope the applicant realizes that the course he has taken is
no shorter than what the court has determined.

This
application therefore fails. The applicant is at liberty to make
another attempt before the Magistrate Court.

MADE
in Chambers at Lilongwe this 17^th
day of February 2006.

A.K.C.
Nyirenda

J
U D G E