IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Civil Cause Number 1798 of 2001
Between
TRATSEL SUPPLIES LIMITED
………………………… Plaintiff
And
ATTORNEY GENERAL
…………………………………Defendant
CORAM: D F
MWAUNGULU (JUDGE)
Nkhono, Legal Practitioner, for the plaintiff
Latif and Kalua, Legal Practitioners, for the
defendant
Katunga, the official court interpreter
Mwaungulu, J.
ORDER
This
appeal arises because the Registrar, following the decision of this Court in National
Bank of
The
issues before this Court are succinctly put by Mr. Nkhono, legal practitioner
for the plaintiff, who obtained a judgment for payment of huge sums of money
against the Government, the defendant. Mr. Nkhono suggests two issues: first,
whether in Malawi a judgment creditor can enforce payment of a judgment by
garnishee proceedings under the Rules of the Supreme Court over funds the
Reserve Bank of Malawi holds for Government:
secondly, whether garnishee proceedings are a form of enforcement of a
judgment. There is no doubt with the
second question. The Rules of the
Supreme Court include proceedings under Order 49 as a mode of enforcing a money
judgment. It is therefore the first
question which comes for determination in this appeal. It is related to a very dominant question in
the three judgments of this Court:
whether Order 77, rule 15 of the Rules of the Supreme Court, supposedly
based on section 25 (4) of the Crown Proceedings Act, 1947, is part of our law. Section 25 (4) of the Crown Proceedings Act,
1947, excludes all common law modes of execution between subjects under Orders
45 to 52 for judgments against Government (the Crown). The plaintiff contends that section 25 (4) of
the Crown Proceedings Act, 1947 does not apply to
This case and others before it,
therefore raise the question of immunity of government from execution.
Government recently has overlooked judgment debts. Two decisions of this Court
allowed, based on the Civil Procedure (Suits by and against Government and
Public Officers) Act, desperate litigants garnishee public funds in the Reserve
Bank of
The complexity of the matters, that
this decision departs from recent decisions of this Court, the need for clarity
on this branch of the law, the variety in international and common law
approaches and Government’s and litigant’s interest and anxiety over this
Court’s recent approaches require care only possible by an overview of the
developments on this aspect of law. Developments in
Under English law two legal provisions
culminate into and account for the Crown’s immunity against execution. Section
25 of the Crown Proceedings Act, 1947, for reasons appearing later, should be
produced in full, provides:
“__(1) Where in any civil proceedings by or against
the Crown, or in any proceedings on the Crown side of the Kings Bench Division,
or in connection with any arbitration to which the Crown is a party, any order
(including an order for costs) is made by any court in favour of any person
against the Crown or against a Government Department or against an officer of
the Crown as such, the proper officer of the court shall, on an application in
that behalf by or on behalf of that person at any time after the expiration of
twenty-one days from the date of the order or, in case the order provided for
payment of costs and the costs require to be taxed, at any time after the costs
have been taxed, whichever is the later, issue to that person a certificate in
the prescribed form containing particulars of the order:
Provided that, if the
Court so directs, a separate certificate shall be issued with respect to the
costs (if any) ordered to be paid to the applicant.
(2)__A copy of any
certificate issued under this section may be served by a person in whose favour
the order is made upon the person for the time being named in the record as the
solicitor, or as the person as solicitor for the Crown or for the Government
department or the officer concerned.
(3)__If the order
provides for the payment of any money by way of damages or otherwise, or of any
costs, the certificate shall state the amount so payable, and the appropriate
Government Department shall, subject as hereinafter provided, pay to the person
entitled or his solicitor the amount appearing by the certificate to be due to
him together with the interest, if any, lawfully due thereon:
Provided that the
Court by which any such order as aforesaid is made or any Court to which an
appeal against the order lies may direct that, pending an appeal or otherwise,
payment of the whole amount so payable, or part thereof, shall be suspended,
and if the certificate has not been issued may order any such direction to be
inserted therein.
(4)__ Save as
aforesaid no execution or attachment or process in the nature thereof shall be
issued out of any Court for enforcing payment by the Crown of any such money or
costs as aforesaid, and no person shall be individually liable under any order
for the payment by the Crown, or any Government Department, or any officer of
the Crown as such of any such money or costs.”
Order 77, rule 15 (1) of the Rules of
the Supreme Court, 1998, provides:
“Nothing in Orders 45
to 52 shall apply in respect of any order against the Crown.”
Section 29 of our Courts Act,
prescribing the practice and procedure for this Court, links and delineates
these developments with the law on Government immunity against execution in
“Save as otherwise
provided in this Act, the practice and procedure of the High Court shall, so
far as local circumstances admit, be the practice and procedure (including the
practice and procedure relating to execution) provided in the Rules of the
Supreme Court:
(a) the Rules of the
Supreme Court may at any time be varied, supplemented, revoked or replaced by Rules
of Court made under this Act;
(b) any of the Rules
of the Supreme Court which refer solely to procedure under Acts of the United
Kingdom Parliament other than statutes of general application in force in
England on the eleventh day of August 1902, and any such Acts as have been
applied to or are from time to time in force in Malawi shall not have any
application in Malawi;
(c) if any provision
of the Rules of the Supreme Court is inconsistent with any provision of any Rules
of Court, the latter shall prevail and the Rules of the Supreme Court shall, to
the extent of such inconsistency, be void.”
Apart from constitutional provisions, covered
later in this order, Government immunity against execution in
Government
immunity against execution at common law
Despite paucity under English and
Australian law, Canadian decisions confirm government immunity from execution
of public property. In
In
the
"The universal rule that where the State gives its
consent to be sued by private parties either by general or special law, it may
limit claimant's action 'only up to the completion of proceedings anterior
to the stage of execution' and that the power of the Court ends when the
judgment is rendered, since government funds and properties may not be seized
under writs of execution or garnishment to satisfy such judgments, is based on
obvious considerations of public policy. Disbursements of public funds must be
covered by the corresponding appropriation as required by law. The functions
and public services rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their legitimate and specific
objects, as appropriated by law.”
For
reasons appearing later in the order, it might be useful to record the
Philippine Supreme Court directions to judges of its lower courts whom it
enjoined “to observe the utmost caution and prudence and judiciousness in the
issuance of writs of execution to satisfy money judgments against government
agencies and local government units:
“Moreover, it is settled jurisprudence that upon
determination of State liability, the prosecution, enforcement or satisfaction
thereof must still be pursued in accordance with the rules and procedures laid
down in P. D. No. 1445, otherwise known as the Government Auditing Code of the
Philippines (Department of Agriculture v. NLRC, 227 SCRA 693, 701-02 [1993]
citing Republic vs. Villasor, 54 SCRA 84 [1973]). All money claims against
the Government must first be filed with the Commission on Audit which must act
upon it within sixty days. Rejection of the claim will authorize the claimant
to elevate the matter to the Supreme Court on certiorari and, in effect, sue
the State thereby (P. D. 1445, Sections 49-50).”
Statutes
could, as we see later, allow for execution in certain respect. The statute
must be very clear to achieve this construction. Otherwise, courts construct
legislation covering execution generally as only applying to subjects, not
Government. The court said in Vaughn
v Condon, 199 P 545 at 545, cited in
“As a matter of public policy,
general provisions making property subject to execution, garnishment, or liens
are construed to apply only to property of private persons and corporations,
and not to that of public corporations or bodies.”
Consequently, case law recognises
that without legislation to the contrary, immunity of government against
execution is universal and general statutes allowing execution of property only
apply to subjects and not Government.
Government immunity from execution
under statutes
Generally, apart from case law,
statutes, even in traditional common law jurisdictions, often support
government immunity against execution (R v Central Railway Signal Co
[1933] SCR 555). In Australia statutes in most territories ensure
government immunity from execution Crown Proceedings Act, s 10; Crown
Proceedings Act 1993 (Tasmania), s 11; Crown Proceedings Act 1992 (ACT), s 13; Crown Proceedings Act 1993 (Northern Territory), s 11; Crown Proceedings Act 1988 (New South
Wales), s 7; Crown Proceedings Act 1958 (Victoria), s 26; Crown Proceedings Act 1980
(Queensland), s 11; Crown Suits Act 1947 (West Australia), s 10. There is similar legislation in
Legal
authors underscore that section 25 of the Crown Proceedings Act is transposed
from sections 13 and 14 of the Petition of Right Act, 1860, (c. 34), which the
Crown Proceedings Act, 1947, repealed (Halsbury Statutes, Butterworths,
4th ed Vol. 13 fn). For reasons appearing shortly, section 13 and 14
must be reproduced. Section 13 provided:
“Whenever, upon any
such petition of right, a judgment, order, or decree shall be given or made
that the suppliant is entitled to relief, and there shall be no rehearing,
appeal or writ of error, or, in case of an appeal or
proceeding in error, a judgment, order, or decree shall have been affirmed,
given, or made that the suppliant is entitled to relief, or upon any rule or
order being made entitling the suppliant to costs, any one of the judges of the
Court in which the petition shall have been prosecuted shall and may, upon
application in the behalf of the suppliant, after the lapse of fourteen days
from the making, giving or affirming suck judgment, decree, rule or order,
certify to the Treasury, or to the Treasurer of Her Majesty’s household, as the
case may require, the tenor and purport of the same, in the form in the
schedule (No. 5.) to this Act annexed, or to the like effect; and such
certificate may be sent to or left at the office of the Treasury, or the Treasurer
of Her Majesty’s household, as the case may be.”
Section 14 provided:
“It shall be lawful
for the Treasury, and they are hereby required, to pay the amount of any moneys
and costs as to which a judgment or decree, rule, or order shall be given or made
that the suppliant in any such petition of right is entitled, and of which
judgment or decree, rule, or order the tenor and purport shall have been so
certified to them as aforesaid, out of any moneys in their hands for the time being legally applicable thereto,
or which may be hereafter voted by Parliament for that purpose, provided such
petition shall relate to any public matter; and in case the same shall relate
to any private property of or enjoyed by Her Majesty, or any contract or
engagement made by or on behalf of Her Majesty in her private capacity, a
certificate in the form aforesaid may be sent to or left at the office of the
treasurer of Her Majesty’s household, or such other person as Her Majesty shall
from time to time appoint to receive the same, and the amount to which the
suppliant is entitled shall be paid to him out of such funds or moneys as her
Majesty shall be graciously pleased or direct to be applied for that purpose.”
The Petition of Right Act, however,
never had section 25 (4) of the Crown Proceedings Act 1947. Section 25 (4),
however, is a codification provision. Authors mention that section 25 of the
Crown Proceedings Act bases on sections 13 and 14 of the Petition of Right Act,
1860 notwithstanding section 25 (4) was introduced by the Crown Proceedings
Act, 1847.
Legal
commentators reflect the correct legal position. Although the Petition of Right
Act never had section 25 (4) of the Crown Proceedings Act, the Petition of
Right Act came in the context that, up to the Act, subjects could not sue the
Crown for torts or breach of contract in common law courts. The Crown, under
various statues, could sue subjects in the courts. The Petition of Right Act enabled subjects under
the procedure in the Act to recover damages or debts against the Crown. Section 1 provided:
“A petition of right
may, if the suppliant think fit, be instituted in any one of the Superior Courts of Common
law or Equity at Westminster in which the subject matter of such petition or
any material part thereof would have been cognizable if the same had been a
mater in dispute between subject and subject, and if instituted in a court of
common law, shall state in the margin the venue of trial of such petition; and
such petition; and such petition shall be addressed to Her Majesty in the form
or to the effect in the schedule to this Act annexed (No. 1), and shall state
the Christian and surname and usual
place of abode of the suppliant and his attorney, if any, by whom the same
shall be presented, and set forth with convenient certainty the facts entitling
the suppliant to relief, and shall be signed by such suppliant, his counsel or
attorney.”
From this context of the Petition of
Right Act, prior to it, executions against the Crown were impossible or
impermissible. The Petition of Right
Act, therefore introduced in sections 13 and 14, referred to earlier, the mode
of satisfying judgments against the Crown. The Crown Proceedings Act, 1947
followed the Petition of Right Act. The
Petition of Right Act and Crown Proceedings Act, 1947 had the same purpose,
expressed eruditely by the House of Lords in British Medical Association v Greater Glasgow health Board [1989] 1
All E.R. 948, H.L.). The Petition of Right Act, in prescribing a procedure for
satisfaction of judgments against the Crown in sections 13 and 14, never
prescribed the common law methods of enforcement against the Crown. That,
however, was also the position at common law. Section 25 (4) of the Crown
Proceedings Act, 1947, never changed the legal position before the Petition of
Right Act, 1860. Section 25 (4) was therefore a codification statute. Apart
from section 25 (4) of the Crown Proceedings Act, 1947, Rules of Court, the
Rules of the Supreme Court, are to the same effect.
Judicial
opinion supports the legal authors’ position. In
“Order 77, rule 15
(1), states succinctly that ‘Nothing in Orders 45 to 52 shall apply in respect
of any order against the Crown.’
That
reflects the general policy of the law that execution or other process of
enforcement cannot go against the Crown for it would be derogatory of the royal
dignity if it were otherwise.
What the court said in Vaughn v Condon, 199 P 545 at 545,
cited in
“As a matter of public policy,
general provisions making property subject to execution, garnishment, or liens
are construed to apply only to property of private persons and corporations,
and not to that of public corporations or bodies.”
Government Immunity from execution
under Rules of Court
Legal
writers on the Rules of the Supreme Court practice for England and Wales, when
considering Crown immunity from execution, cite Order 77, rule, 15 of the Rules
of the Supreme Court alongside section 25 (4) of the Crown Proceedings Act,
1947 (Halsbury Laws of England, Butterworths, 4th ed. Vol. 10,
para. 1436, fn 10; Halsbury Statutes, Butterworths, 4th ed.
Vol. 13, para. 25, fn; ‘Immunity from Execution’ Australian Law Commission, fn
vii). Section 25 (4) was not first to exclude modes of execution in Orders 45 to
52 to judgments against the Crown. Neither does Order 77, rule 15 start with
the Crown Proceedings Act, 1947. Order 77, rule 15 has an older pedigree. Like
all Rules of the Supreme Court, Order 77, rule 15, originates from the first
Rules of the Supreme Court drafted by the Judges for the new judges of the High
Court and Court of Appeal. The rules appeared
as the First Schedule of the Judicature Act, 1875. They were expanded and reissued as the Rules
of the Supreme Court 1883. Orders 45 to
52 of the 1998 Rules of the Supreme Court were in orders XLI to XLIX of the Rules
of Court, scheduled to the Judicature Act, 1875. Order LXII excluded from the rules the
practice or procedure in “Proceedings on the Crown side of the Queens Bench
Division.” The Rules of Court, as early
as 1875, well before section 25 (4) of the Crown Proceedings Act, 1947,
excluded against the Crown the processes under Orders 45 to 52. Order 77, rule 15 of the Rules of the Supreme
Court is not therefore based on the Crown Proceedings Act, 1947. Order 77, rule 15 of the Rules of the Supreme
Court predates the Crown Proceedings Act, 1947 and bases on the Judicature Act,
1875. The Crown Proceedings Act, 1947 is
not a statute of general application before 1902. The Judicature Act 1875 is a statute of
general application before 1902. It, in the First Schedule, limits, through the
Rules of Court, the application of writs of execution to the Crown. As common
law remedies, they, apart from the Rules of Court, never applied to the Crown.
Government Immunity from execution
under the Constitution
The
Petition of Right Act and the Crown Proceedings Act, 1947, may be regarded, in
the context of a jurisdiction without one, constitutional immunity of
Government from execution. The Petition of Right Act, 1860 and the Crown
Proceedings Act, 1947 provide an approach repeated in most jurisdictions with or
without a written Constitution. The model restricts Government’s power to
honour judgment debts by limiting appropriation of public funds and protecting
money in the national treasury. Section 83 of the Australian Constitution
provides that “[n]o money shall be drawn from the treasury of the Commonwealth
except under appropriation by law.” Gummow and Kirby, J.J. in Commonwealth v Mewett said:
“Section 65 and 66 of
the Judiciary Act accommodates [s 83] in respect of judgments given against the
Commonwealth and States. There is to be no execution or attachment, but upon
receipt of a certificate of judgment, the Commonwealth Minister of Finance or
State Treasury, as appropriate, shall satisfy the judgment out of the moneys
legally available.”
Our 1994 Constitution possesses similar
constitutional limitations on satisfaction of judgments. Section 172 creates
the Consolidated Fund. Section 173 (1) (a) and 173 (1) (b) provide for and circumscribes
withdrawals from the Consolidated Fund:
(a) to meet expenditure that is charged upon the Fund by this Constitution or by any Act of Parliament consistent with this Constitution; or
(b) where the issue of those moneys has been authorized by an Appropriation Act, a Supplementary Appropriation Act or by an Act made in pursuance of subsection (5) or of sections 178, 179, 180, 181 or 182 or by a resolution of the National Assembly made in accordance with section 177: Provided that this subsection shall not apply to any sums mentioned in section 175 (3).
Section 173 (2) provides for payment from the
Consolidated Fund:
“Where any moneys are charged by this Constitution or by
any Act of Parliament upon the Consolidated Fund, they shall be paid out of
that Fund by the Minister responsible for Finance to the person or authority to
whom the payment is due.”
Section 173 (3), in a similar fashion
like the Australian Constitution, prescribes withdrawals from the Consolidated
Fund:
“No moneys shall be
withdrawn from the Consolidated Fund except in the manner prescribed by the
National Assembly.”
Under section 173 (4) this protection
inures the fund when the money is in a bank:
“The investment of moneys forming part of the Consolidated Fund by way of deposit with a bank or such other secure investment as may be approved by the National Assembly shall not be regarded as a withdrawal of those moneys from the Consolidated Fund for the purposes of this Constitution. “
Section 174 (1) (c) provides for
satisfaction of judgments against the State:
“There shall be
charged on the Consolidated Fund in addition to any grant, remuneration or
other moneys so charged by this Constitution or any Act consistent with this
Constitution … any moneys required to satisfy any judgment, decision or award
made or given against the Government by any court or tribunal other than those
provided for in the National Compensation Fund.”
Government, therefore, satisfies
judgments against the state by Courts or tribunals by charging the Consolidated
Fund. The Constitution requires Parliament charge the Consolidated Fund when
satisfying judgments against the State. Parliament need not and cannot charge
the Consolidated Fund where the judgment against the state is already satisfied
by execution. The 1994 Constitution, therefore, confirms and ensures Government
immunity from execution and provides a mode of executing or enforcing judgments
against Government. Statutes, Rules of Court and the common law of
Malawian statutes
In
relation to satisfaction of judgments against the State, the principal Malawian
statues are the Civil Procedure (Suits by and against Government and Public
Officers) Act and the Courts Act. The Civil Procedure (Suits by and against
Government and Public Officers) Act is the equivalent of the Crown Proceedings
Act, 1947,
The
Civil Procedure (Suits by and against Government and Public Officers) Act in
1946 did not change the practice and procedure on execution. Section 3 of the
Act only covered the practice and procedure for institution and trial of
proceedings; the Civil Procedure (Suits by and against Government and Public
Officers) Act did not cover the practice and procedure for execution against
Government. Section 3 (1) reads:
“Save as may be
otherwise expressly be provided by any other Act, suits by or against the
Government shall be instituted by or against the Attorney General. Such suits
shall be instituted and tried [emphasis supplied] in the same
manner as suits to which the Government is not a party.”
Section 8 of the Civil Procedure (Suits
by and against Government and Public Officers) Act provides for satisfaction
and execution of judgments against the State:
“When the decree is
against the Government or against a public officer in respect of such act,
neglect or default as a foresaid, a time shall be specified in the decree
within which it shall be satisfied; and if the decree is not satisfied within
the time so specified the court shall report the case for the orders for the
orders of Government. Execution shall not be issued on any such decree unless
it remains unsatisfied for a period of three months computed from the date of
the report.”
There are many ways of reading that aspect of section 8 of
the Civil Procedure (Suits by and against Government and Public Officers) Act
that allows execution of a judgment of a court. Many decisions of this Court
suggest these approaches. Casalee Cargo
Ltd v Attorney General [1992] 15 MLR 48 was the first decision on section 8
of the Civil Procedure (Suits by and against Government and Public Officers)
Act. That was my decision as Registrar. It is not binding on me. In that case I
thought, and still think so now, that section 8 related specifically to
situations emanating from section 4 of the Act. Section 4 of the Civil
Procedure (Suits by and against Government and Public Officers) Act, in my
opinion, covers acts (commissions) or defaults (omissions) “in pursuance, or
execution, or intended execution of any Act or other law, or of any public duty
or authority.’
The
section does not cover all actions and omissions of government; only acts or
defaults in pursuance, or execution, or intended execution of any Act or other
law, or of any public duty or authority. A distinction is made between
Government acts or defaults emanating from legal obligations from Acts of
Parliament or any other law, duty or authority and Government acts or omissions
connected to Government as a legal person like all persons in law. The latter
are excluded by the wording in section 8. For example, Government, as a legal
entity, is entitled to enter into contracts. When it does, it does not do so
not in pursuance of, or execution, or intended execution of any Act or other
law, or of any public duty or authority. It does so as a legal entity like any
other. The acts or default root in the contract, not in pursuance, or
execution, or intended execution of any Act or other law, or of any public duty
or authority. In Casalee Cargo Ltd v
Attorney General at 50, I said:
“However section 8
does not deal with all suits against Government generally but only those
related to acts or omissions in pursuance of public or statutory duty. This
raises a question how judgments or orders or decree against Government should
be satisfied. It is important to state that section 3(1) of the Civil Procedure
(Suits by or against the Government or Public officer) Act only provides for
institution and trial of suits by or against Government. It does not deal with
execution of judgments, orders, or decrees. Execution is covered by section 29
of the Courts Act …”
Section 8 of the Civil Procedure (Suits
by and against Government and Public Officers) Act, before considering section
29 of the Courts Act, only, assuming it applies to all cases generally,
provides for ‘execution to issue”, in other words for execution. It does not
provide for the practice and procedure for execution.
A
distinction must be made between execution and the modes of execution. I adopt
the Australian Law Reform Commission’s definition:
“Execution is a
procedure for the enforcement of judgments, usually involving seizure and sale
by the sheriff or other court official of the judgment debtor’s property to pay
the sum due to the judgment creditor.”
The definition suggests the word
‘execution’ denotes a procedure for enforcing or satisfying a judgment. Under
the definition, seizure and sale by the sheriff or other court official of the
judgment debtor’s property to pay the sum due to the judgment creditor is an
instance of executing, enforcing a judgment. Section 8 deals with the former.
It does not deal with the latter. In short, section 8 of the Civil Procedure
(Suits by and against Government and Public Officers) Act does not provide for
modes of execution against Government. Section 29 of the Courts Act deals with
the practice and procedure of execution of judgments:
“Save as otherwise
provided in this Act, the practice and procedure of the High Court shall, so
far as local circumstances admit, be the practice and procedure (including the practice and procedure
relating to execution) [emphasis supplied] provided in the Rules of the
Supreme Court:
Malawian Rules of Court
The
Rules of Court ultimately determine the practice and procedure of executing
judgments generally and judgments against Government particularly. The Rules of
the Supreme Court, much like the Civil Procedure Rules for
In
National Bank of
“It seems to me that
the applicant would indeed have been a proper one for which a garnishee order
should have been granted, were it not for the fact that the garnishee in the
instant case is the Government of Malawi, which is represented by its legal
officer, the Attorney General. Order 49 (1) paragraph 29, clearly and expressly
provides that no order for the attachment of debts shall be made or have effect
in respect of any money due or accruing from the Crown. Further, Order 49
generally does not apply in respect of any order against the Crown. The effect
of that in our situation is that Order 49 does not apply in respect of any
order against the Government.”
There is no Order 49, rule 1, paragraph
29 in the Rules of the Supreme Court. Order 77, rule 15 prohibits application
of garnishee orders against the Crown. The Rules of the Supreme Court,
therefore, prohibit garnishee orders against the Crown. Justice Tembo, however,
never considered the question whether order 77, rule 15, or Order 49 (1),
because of the Crown Proceedings Act, 1947 was part of our law. The Judge
considered the Crown Proceedings Act, 1947 in a different context.
In
Tayamba General Dealers v Attorney
General the Registrar refused to grant a garnishee order, apparently based
on National Bank of
“[T]he Registrar
should weigh the pre-1994 constitutional order and compare it with the post May
1994 constitutional framework. Can rule of law exist where Government wants to
overprotect itself? If Government wants to participate in commercial bank
facilities it must realize that garnishee orders fully attach to commercial
banks and there would be nothing improper in making a garnishee order against a
commercial bank for its credit balance in favour of a government department or
agency.”
The immunity of government against
execution by judicial pronouncements, Rules of Court, statutes and
Constitutions is, as shown, pervasive and grounded on rule of law and public
policy, not overenthusiasm. The immunity is contemporary and well grounded in
our 1994 Constitution. The Judge’s concerns are allayed by considering the other
competing and compelling stakes in the Consolidated Fund expressed better in a
passage in
“The Vaughn case, supra, further held that
public funds are pecuniary interests of great magnitude, and vast numbers of
human beings are dependent on public funds for their ‘security of life and
property.’
‘To permit the great
public duties of [government] to be imperfectly performed, in order that
individuals may better collect their private debts, would be to pervert the
great objects for which government exists.’”
Government immunity against execution,
as section 173 (4) of the Constitution demonstrates, remains even if moneys in
the Consolidated Fund are in a bank. Moreover, from the wording of section 173
(1) and 173 (3), money from the fund can only be used for what Parliament votes
it for. The funds voted for other purposes cannot be used for another.
Consequently, only money charged to satisfy judgment debts under section 174
(1) (c.), is available for the purpose. This is apparent in our Constitution
and in section 14 of the Petition of Right Act, 1860. Whatever the case,
Parliament must, before use for the purpose, appropriate the funds for use to
satisfy judgment debts. This is what the Philippine Supreme Court in Commissioner
of Public Highways v .San Diego meant by
“legitimate and specific objects, as appropriated by law” and Gummow and Kirby, JJ., meant in Commonwealth v Mewett by “the amount
legally available.”
In
Apex Car Sales v Attorney General, after
approving of the statement in Tayamba
General Dealers v Attorney General, Kapanda J., said:
“As we understand it,
there is no law in
As
appeared earlier and will appear shortly, the Rules of Court, which created the
different modes of enforcing judgments, applied only to subjects. The Rules of
Court under the Judicature Act 1875 then dis-applied the Rules of Court in
Crown proceedings in the Kings Bench Division of the High Court. Consequently,
garnishee proceedings were impermissible against the Crown. There were,
however, statutes, of general application, allowing the Crown to garnishee
against subjects. Under these laws, Government can garnishee. There is no law,
however, permitting subjects to garnishee Government. On the contrary, there
are laws, we see in a moment, proscribing subjects from garnisheeing
Government.
First
is Order 77, rule 15 of the Rules of the Supreme Court. The objection to Order
77, rule 15 premises on Apex Car Sales v
Attorney General where the judge thought exclusion of processes under
Orders 45 to 52 of the Rules of the Supreme Court bases on section 25 (4) of
the Crown Proceedings Act, 1947. The Judge said:
“Further, wee wish to
observe that the said Order 49 of the Rules of the Supreme Court, which is
founded on the Crown Proceedings Act, 1947 and proscribes the use of garnishee
proceedings against the Crown, has no application to Malawi since the said
Crown Proceedings Act is not part of our received law: Sisya v Attorney General [1993] 16(2) MLR 820. In the absence of a
similar legislation in
The
objection premises on two assumptions: first, that the rule could not be
premised on other statutes even though of no general application before 1902;
secondly, that Order 77, rule 15 conferring Government immunity from execution
bases on section 25 of the Crown Proceedings Act, 1947. The first assumption
requires considering the content of the Rules of the Supreme Court. First, they
are Rules of Court, the court has inherent jurisdiction to regulate its
procedure. Secondly, unless specific Acts provide specific procedure, the rules
apply to all civil proceedings in the High Court (see Order 1, rule (2) (1) and
(2). Thirdly, the rules are not necessarily reflective of statutory provisions
although some rules base on statutes. Rules based on specific statutes apply
only if they satisfy other tests: rules based on post 1902 statutes apply if
specifically applied to
Order
77, rule 15 of the Rules of the Supreme Court, on this analysis, is a rule made
under the Civil Procedure (Suits by and against Government and Public Officers)
Act. The rule, is therefore, not based on the Crown Proceedings Act, 1947. It
is made under our statute. There are many such rules in the Rules of the
Supreme Court: Order 73 (Arbitration Proceedings, under our Arbitration Act,
cap 6.03); Order 79 (Criminal Proceedings); order 91 (Revenue Proceedings); Orders
93 and 94 (Applications and Appeals to the High Court under Various statutes);
Order 95 [Bills of Sale, under the Bills of Sale Act, cap 48:03) Order 99
(Inheritance (Provision for Family and Dependants) Order 100 (Trade Marks,
under the Trade Marks Act, cap 49:01,
Trademarks Act); Order 103 (Patents, Registered Designs, under the Patents Act,
49:02 and Registered Designs Act, cap 49:05, under our Companies Act, cap
46:03); Order 106 (Solicitors) and Order 102 (Companies Act). Order 77, rule 15
therefore bases on the Civil Procedure (Suits by and against Government and
Public Officers) Act. These rules are not, under section 29 (b) of the Courts
Act, Rules of the Supreme Court which refer solely to procedure under Acts of
the United Kingdom Parliament. The rules refer to our statutes too.
On
the second assumption, Order 77, rule 15 conferring Government immunity from
execution does not, according to section 29 (1) (c) of the Courts Act, base
solely on section 25 of the Crown Proceedings Act, 1947. Besides basing on our
Civil Procedure (Suits by and against Government and Public Officers) Act, the
limitation in Order 77, rule 15 applied generally before the Crown Proceedings
Act, 1947. A similar rule existed before the Crown Proceedings Act, 1947 under
the Supreme Court of Appeal Judicature Act 1875 and the Petition of Right Act,
1860, both statutes of application before 1902. Order 77, rule 15 predates the
Crown Proceedings Act, 1947 and emanates as an independent rule of court.
That
it is an independent rule of court is important for another point which I want
to make because of some comments in Tayamba
General Dealers v Attorney General and Apex
Car Sales v Attorney General: the modes of executing judgments in Orders 45
to 52 in the Rules of the Supreme Court (formerly Orders XLI to XLIX) are
creatures of the Rules of Court; the same Rules of Court, since 1875 and up to
1947, excludes their application to Government. In so excluding their
application to Government, Judges of the Court, who initially made the rules,
reacted to public concerns, we see shortly, and the prevailing constitutional
arrangements favouring government immunity against execution. Those
constitutional and public policy concerns arise in the argument of this appeal
and are eruditely accentuated by my learned colleagues in this Court. The
choices were made then that still rule us today. The choices were then
generally universal and are today in favour of protecting all public property
from execution. In relation to money in the Consolidated Fund there is no room
for a choice. The Constitution proscribes withdrawals from the Consolidated
Fund, even when money is in the bank, except by appropriation according to the
Constitution. Although Government should respect court judgments, the
Constitution prescribes that money required for judgments against Government
should, following proper procedure, be charged to the Consolidated Fund. These constitutional provisions, in my most
considered view, put moneys in the Consolidated Fund out of reach of a sheriff
or his officers executing a writ of fieri
facias or creditors wanting to garnishee a debtor Government or a debtor
who Government owes money and complement and augment what has always been the
practice of this Court since 1875 until Tayamba
General Dealers v Attorney General and Apex
Car Sales v Attorney General that Orders 45 to 52 do not apply to judgments
against Government. This rendition of the constitutional provisions coheres
with the universality of the principle under foreign case law referred to as
section 11 (2) (c) of the Constitution exhorts.
The
two decisions insist that because Government can garnishee against the subject
subjects should be able to garnishee. The quest for reciprocity fails on two
grounds. First, as we have seen laws and public policy are against reciprocity.
Secondly, and this is equally important, orders 45 to 52 of the Rules of the
Supreme Court apply to ‘judgment debtors.’ Lord Denning in
Of
course the concerns raised are germane. They, however, only indicate the
difficult policy choices in opting for a principle of law. Indeed, a law that
only allows Government to use coercive measures under Orders 45 to 52 of the
Rules of the Supreme Court against subjects and not vice versa on the face of
it is inclined. On the other hand disruption to public services through a
contrary rule concerned, correctly in my judgment, the Philippine Supreme Court
in Commissioner of Public Highways v .San Diego, the Law Reform Commission of Canada in 1985 and
The Law Commission in
The
solution, in my judgment, is not to do that which, from all I have said, is not
permitted by law. This Court can only emphasize to Government the importance of
honouring judgment debts which are really judgments of the court and stress
that the wording of section 174 (1) (c.) of the Constitution is mandatory
“There shall [emphasis supplied] be charged on
the Consolidated Fund in addition to any grant, remuneration or other moneys so
charged by this Constitution or any Act consistent with this Constitution … any
moneys required to satisfy any judgment, decision or award made or given
against the Government by any court or tribunal other than those provided for
in the National Compensation Fund.”
The section requires Government to charge the
Consolidated Fund with money required to satisfy judgments of courts or
tribunals. Where a public official neglects or refuses to act under the
importune of section 174 (1) (c.), the subject has public law remedies. Stickrose
(Pty) Limited v The Permanent Secretary of the Minister of Finance. S.C.Z.
Judgment No 30 of 1999, http://www.unza.zm/courts/supreme/full/99scz30.htm
suggests the contrary.
In Stickrose
(Pty) Limited v The Permanent Secretary of the Minister of Finance the
plaintiff obtained a judgment against Government. He served Government with an
appropriate notice under which Government was to pay on receipt of the
certificate. Government paid part of the money. The plaintiff’s application for
committal failed: under Zambian law the government official could not be
arrested for liability by Government. The plaintiff’s application for judicial
review failed in the High Court. Dismissing the appeal, the Zambian Supreme
Court said:
“In the first place we wish to make the observation that
Order 45 of the White book, 1999 edition, groups together the methods for the
enforcement of the judgments and orders of the court. In
In
“(3) If the order provides for the payment of
any money by way of damages or otherwise, or of any costs, the certificate
shall state the amount so payable, and the Permanent Secretary, Ministry of
Finance, shall subject as hereinafter provided, pay to the person entitled or
to the legal practitioner acting for such person in the proceedings to which
the order relates the amount appearing by the certificate to be due to him
together with the interest, if any, allowed under section twenty.”
The appellant in the present appeal correctly
followed these provisions. But when the State began to drag their feet in
complying with the payments as per particulars in the certificate, the
applicant decided to apply for judicial review. They obtained the order of
mandamus but this did not help matters either. Subsequently they applied
for committal of Mr. James Mtonga. While the appellant was entitled to enforce
the Order that was made in their favour, the issue is whether it was competent
to do so by way of an application for judicial review. Subsection (4) of
Section 21 of the State Proceedings Act states:
“(4) Save as aforesaid, no execution or
attachment or process in the nature thereof shall be issued out of any court
for enforcing payment by the State of any such money or costs as aforesaid, and
no person shall be individually liable under any order for the payment by the
State, or any public officer as such, of any such money or costs.”
In the instant appeal a process of judicial
review was issued out of the High Court to obtain an order of mandamus, which
was directed at Mr. James Mtonga, a public officer, as a means for enforcing
payment by the State. Subsequently committal proceedings were commenced
against Mr. James Mtonga as an individual. The use of the process of judicial
review was in our view contrary to law and therefore a nullity. The
issuance of judicial review proceedings as a means of enforcing judgment was a
complete abuse of the court process.”
The
Zambian Supreme Court’s decisions are persuasive in this Court. The Zambian
Supreme Court, however, understood judicial review, at least, in that case to
be a mode of or an aid to execution and rejected it simply because, as a mode
of enforcing judgment, the Rules of Court never covered it. Judicial Review,
however, is a remedy sui generis, and
through its peremptory orders of mandamus, certiorari and prohibition, an
effective tool of administrative law. In the Stickrose (Pty)
Limited v The Permanent Secretary of the Minister of Finance, through mandamus, it was a proper way, not another
mode of execution, for the Permanent Secretary to comply with section 21 (3) of
the State Proceedings Act. The trend worldwide is for administrative remedies to
compel Government to do the lawful. In the direction to Judges below it the
Philippines Supreme Court said: “Rejection
of the claim will authorize the claimant to elevate the matter to the Supreme
Court on certiorari and, in effect, sue the State thereby (P. D. 1445, Sections
49-50).” (See ‘Immunity from Execution’, the Australian Law Commission).
Moreover, judicial review, in that sense becomes an aid to execution. We can
borrow from American Jurisprudence: all aids to execution are executions. In
“These supplementary proceedings also ‘take various forms,
variously denominated as proceedings in aid of execution, garnishments after
judgment, garnishee execution, attachment execution, and income execution … It
is said that ‘a supplementary proceeding is as much a means of enforcing a
judgment as the ordinary writ of execution.’”
Orders 45 to 52 are not exhaustive of
all means of enforcing all judgments of the courts.
The
Constitution, statutory law, the Common law, Rules of Court and Law Reform
confirm immunity for Government from execution. This does not mean that the
subject has no remedy against Government. It means the particular modes of
enforcing judgment between subjects are inappropriate for judgments against
Government. In Vaughn v Condon, 199 P 545 at 545, cited in
“As a matter of public policy,
general provisions making subject to execution, garnishment, or liens are
construed to apply only to property of private persons and corporations, and
not to that of public corporations or bodies.”
The ignominy in the rule, if any, is mollified, as
seen, by statutory and constitutional provisions requiring Government to honour
judgments against it in a specific way. The practice is in my judgment to
proceed as stated in Casalee Cargo Ltd v Attorney General. In one sense proceeding under section 8
in its present form would not enable Parliament to appropriate moneys for judgments
against Government, unless, I suppose, the Court, in stipulating the time for
compliance with the judgment, regards the time Parliament might take to
appropriate the funds in compliance with the Constitution. Whatever gaps are in
the section 8 of the Civil Procedure (Suits by and against Government and
Public Officers) Act, the Petition of Right Act, 1860, a statute of general
application covers them and Casalee Cargo
Ltd v Attorney General considers them.
There might, as many decisions of this Court suggest, be need for reform
in this area of law to stave off the events since the two decisions of this
Court. There is no doubt in my mind that the law is as I have stated. If not,
the rules of construction about general provisions like the ones considered
here yield similar results.
To
the question whether Government judgment creditors can garnishee funds in the
Consolidated Funds of the Reserve Bank as a matter of course, the answer is
that the common law, our statutes and Rules of Court do not allow that. Section
8 of the Civil Procedure (Suits by and against Government and Public Officers)
Act use of the word ‘execution’ refers to enforcement and is not, therefore,
prescriptive of the mode of execution. The common law modes of execution in
Orders 45 to 52 historically never applied to the Crown. The Constitution and
statutes provide a mode of executing judgments against Government. This
constitutional and statutory mode is a mode of execution of Judgments against
Government as the ones in Orders 45 to 52 are modes to the same effect between
subjects. If any Government official refuses or neglects to do what the
Constitution and the statutes require the subject has administrative remedies.
The administrative remedies complement or augment the stated method of
enforcing or executing a judgment of the court and such are executions for
purposes of section 8 of the Civil Procedure (Suits by and against Government
and Public Officers) Act. In
“The effect of the
second half of section 20 of the Act of 1877 properly understood is not to
transfer or transmit to the registrar a personal liability or obligation to pay
to the extent of funds in his position, but to impose upon him the
responsibility of performing the ministerial acts which will have the result of
utilizing those funds to discharge what remains the reliability of the judgment
debtor, that is to say, the Crown. If the registrar fails or neglects to comply
with his statutory duty to do the requisite acts within his power, there are no
doubt ways and means for dealing with such recalcitrance. I am not concerned to consider what would be
the appropriate course, judicial or executive, that might be taken.”
It
does not have to come to that. “It is always presumed” said Lord Denning, M.R.,
in
In requiring appropriation for
satisfying judgments debts, Government, for two reasons, far from impinges the
subjects’ right to an effective remedy under the Constitution. First, there is
no denial of a remedy. The Constitution creates a process for ensuring the
remedy. Secondly, it is the Constitution, the Constitution that creates the
right to an effective remedy, that itself creates the immunity of Government
from execution. A provision in the Constitution cannot be unconstitutional.
Where there are conflicts, and there is a presumption that the Constitution
cannot want to create inconsistencies in itself, rules of construction, will resolve
the confusion, but only where, unlike
here, there is a conflict. More importantly the right to an effective remedy is
derogable and the common law, statute and rules of court can, as done here,
limit the right. The limitation is universal, does not confront international
human standards and is necessary in an open democratic society.
The Registrar was, in my most
considered opinion, right to refuse the garnishment of funds in the Reserve
bank. The appeal is dismissed with costs.
Made in Court this 16th Day
of December, 2003
D F Mwaungulu
JUDGE