De Souza v De Costa and Another (Civil Appeal No. 47 of 1933.) [1934] EACA 15 (1 January 1934)

## Before GAMBLE, Ag. J.

# BARTHOLOMEW RICHARD DE SOUZA, carrying on businessunder the style or firm of B. RICHARD & COMPANY $Appellants$ (Original Plaintiff)

#### $\overline{v}$ .

# 1. L. DE COSTA; 2. J. J. PEREIRA,

Respondents (Original Defendants).

### Civil Appeal No. 47 of 1933.

Sec. 34 Stamp Ordinance, Cap. 57, Laws of Kenya-Sec. 32 Indian Stamp Act compared.

$Held.$ —1. It is not open to any Court in the Colony to vary the order of a collector in an assessment made under section 34, Cap. 57.

2. A Court of limited jurisdiction cannot, even with the consent of the advocates concerned, enlarge that jurisdiction.

JUDGMENT.—This is an appeal from the judgment of the learned Resident Magistrate, Eldoret, in Civil Case No. 235 of 1933. $\mathbf{I}$

The original suit was brought on a promissory note, the learned Resident Magistrate held that the suit must be dismissed with costs as the promissory note was insufficiently stamped.

Actually the promissory note is endorsed as follows: "By virtue of section 34 of the above Ordinance Cap. 57 I hereby certify that the full stamp duty amounting to Sh. 1 due hereon has been paid—Signed, Revenue Authority". The chief ground of appeal is that the learned Resident Magistrate had no jurisdiction or right to decide whether or no the promissory note was insufficiently stamped, the certificate of the Revenue Authority being final.

The sections of the Stamp Ordinance dealing with the adjudication and certification of Stamp Duty are 33 and 34. I quotesection 34 (3): "Any instrument upon which an endorsement has. been made under this section shall be deemed to be duly stamped or not chargeable with the duty as the case may be; and, if. chargeable with duty shall be receivable in evidence or otherwise." This sub-section is verbatim the same as section 32 (3) of the Indian Stamp Act. The commentary to this sub-section in Donogh's Indian Stamp Act is as follows: "The effect of this provision is to make a determination by a collector which has been duly endorsed on an instrument final in respect of that instrument."

$\gamma_{\rm{max}}=0.14$ In this case the peculiar situation arises that it is not the holder of the instrument who is seeking redress over the stamp duty. It is the maker of the note who on being sued seeks to compel Government to charge more stamp duty than the collector finds due in order that he, the defendant, may be in a position. to put up a technical defence.

A considerable portion of the respondents' written argument deals with the hardship to them in that owing to the action of the appellant in getting the collector to assess duty, they, the respondents, are now debarred from availing themselves of the provision of section $34$ (4) and 59 of Cap. 57. The hardship is more apparent than real: the respondents are trying to put forward a defence without any merits and the underlying purpose of section 34 and 59 was not to allow makers of promissory notes to avoid their responsibilities thereunder by invoking what may be termed the Appellate Sections of Cap. 57.

Provision is made for a person who is dissatisfied with the decision of the collector under section 31 (1) of Cap. 57 when on payment of a reference fee of £2 the matter may be referred to the Commissioners and they again under section 59 may state a case for the opinion of the Supreme Court on payment of a fee of $£5$ .

I am satisfied that in no other way can the decision of the collector be impugned; it is not open to a Subordinate Court or to any Court in the Colony to say that the assessment made by the collector is wrong. I will only refer to two authorities on this proposition: Stamp Reference by the Board of Revenue, (40 All. 1918, 128), and Reference under Stamp Act 1902, (25 Mad. 752). In the latter case BHAGAN AYYANGAR J. observes "Sections 40 and 42 which as under section 32" (our section 34) "operate as a judicial adjudication as to the proper Stamp Duty."

For the above reason I am of the opinion that the learned Resident Magistrate was wrong in holding that he could interfere with or disallow the decision in assessment of the collector.

There is one other aspect of this ground of appeal which must be dealt with and that is the attempt by the Court to confer jurisdiction on itself with the consent of the parties. The learned magistrate in his judgment states "Parties' advocates, however, agree that this Court is not bound by this decision of the Commissioners." It was not in fact a decision of the Commissioners but of the collector under the provision of section 34 of Cap. 57. In any event parties' advocates cannot by agreement or in any other manner enlarge the jurisdiction of a Court. When a limited Court takes upon itself to exercise a jurisdiction it does not possess its decision amounts to nothing: $A. G. v. Hotham$ $(3$ Russ. $415)$ .

$\mathcal{X} \to$ Having decided the first and second grounds of appeal in favour of the appellants it is unnecessary at this stage to consider the very interesting argument of Mr. Delany with regard to days of grace. Any remarks I would make in this connection would be obiter.

The appeal is allowed with costs and the case is remitted to the Court of the Resident Magistrate, Eldoret, for hearing.

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