MALAWI
IN THE HIGH
COURT OF MALAWI
PRINCIPAL
REGISTRY
CIVIL CAUSE NO.
3645 OF 2001
BETWEEN:
APEX CAR
SALES
JUDGMENT CREDITOR
-and-
ATTORNEY GENERAL
(Controller
of Stores-on behalf of
Ministry of
Tourism)
JUDGMENT DEBTOR
-and-
NATIONAL BANK
OF MALAWI
GARNISHEE
CORAM: THE HON. MR JUSTICE F.E. KAPANDA
Mr Kauka, of Counsel for the
Judgment Creditor
Absent, Counsel for Judgment
Debtor and Garnishee
Mr Rhodani, Court Clerk
Date of
hearing: 19th September 2003
Date of
ruling: 10th October 2003
Kapanda,
J
RULING
Introduction
On 5th June 2003 the learned
Assistant Registrar discharged a Garnishee Order nisi that the Judgment
Creditor had obtained in this matter.
The Judgment Creditor is
aggrieved by the decision of the said Assistant Registrar. Thus the appeal herein.
We must point out that this court will
have to rehear the proceedings that were before the learned Assistant
Registrar. This is the case since
appeals to a Judge in Chambers, from the decision of the Registrar, are by way
of a re-hearing: Order 58 of the
Rules of the Supreme Court.
Fact
of The Case
The facts of this case,
which are relevant to the determination of this appeal, are simple and they are
as follows:
On 6th February 2002 the
judgment creditor (Apex Car Sales) obtained a default judgment against the
judgment debtor (the Attorney General).
Of the so many methods of enforcing judgment available to it, the
judgment creditor chose to enforce the judgment by way of garnishee
proceedings. Consequently, on 5th
May 2003 the judgment creditor obtained a garnishee order nisi. The learned Deputy Registrar ordered that
all debts due and accruing from the garnishee herein to the judgment debtor
should be attached to answer the judgment that was entered against the judgment
debtor on the said 6th day of February 2002.
The learned Deputy Registrar then set
the 5th day of June 2003 as the date when the garnishee order nisi
was to be made absolute. As it turned
out the said garnishee order nisi was never made absolute. Instead, the learned Assistant Registrar
discharged the garnishee order nisi that the judgment creditor had
obtained on the said 5th day of May 2003.
The
Assistant Registrars Order
The Assistant Registrar made the
following order, which is the subject matter of this appeal:
On
the strength of the High Court decision in National Bank of Malawi vs. S.Y.
Banda t/a Victoria Distributors and
Attorney General C.C. No. 325 of 1991 the garnishee order nisi
herein is discharged as it concerns government.
The above quoted order did not go down
well with the judgment creditor. Hence,
on the same day the order was made the judgment creditor took out a Notice of
Appeal. In it the judgment creditor set
out the basis upon which it was appealing against the Order of the learned
Assistant Registrar.
Grounds
of Appeal
In the Notice of Appeal mentioned above
the judgment creditor set out one ground of appeal. It was put thus:
The
learned Assistant Registrar erred in law in holding that the correct position
at law is that no Garnishee Proceedings shall issue against Government funds.
There was no cross appeal on the part of
either the judgment debtor or the garnishee.
Further, it must be noted that though both the judgment debtor and the
garnishee were served with the Notice of Hearing they did not appear before us
to present any argument in this appeal.
The
Argument of Judgment Creditor
The garnishor, through learned
Counsel, has essentially advanced one argument. It is that the learned Assistant Registrar was mistaken in
discharging the Garnishee Order nisi.
Mr Kauka has, to this end, cited several authorities to support his
contention that the decision of the learned Assistant Registrar was based on an
erroneous decision of the High Court in National Bank of Malawi vs. S.Y.
Banda t/a Victoria Distributors and Attorney General Civil Cause No. 325 of
1991 [unreported]. We will comment upon
this decision later when we are considering the issue that this court has been
invited to determine. Counsel for the
judgment creditor further submits that, as the law presently stands in Malawi,
a successful litigant is not precluded from employing garnishee proceedings as
a mode of enforcing a judgment obtained against Government. The judgment creditor opines that since, in
terms of Section 8 of the Civil Procedure (Suits by or Against Government or
Public Officers) Act, a successful litigant can execute against Government then
there is nothing to stop such litigant from enforcing a judgment against
Government through garnishee proceedings.
Issue
For Determination On This Appeal
The issue for
determination in the appeal before us is whether or not, in Malawi, a successful
litigant, in seeking to recover a judgment debt due from Government, is
precluded from employing Garnishee Proceedings as a mode of enforcing a
judgment entered against Government.
We wish to point out that as we are
determining this issue the court will also answer some other questions that it
thinks will assist it in meaningfully determining the issue arising for
determination in this appeal.
Consideration
of the Issue
The
decision relied upon by the learned Assistant Registrar
We noted that the learned Assistant
Registrar discharged the garnishee order on the strength of this courts decision in National
Bank of Malawi vs. S.Y. Banda t/a Victoria Distributors and Attorney General C.C. No. 325 of 1991 [High Court decision of
29th February 1995] [unreported].
We also had the benefit of reading, and reflecting on, our earlier
opinion in the National Bank of Malawi case cited above and wish to make
a few observations.
Firstly, the court rightly concluded
that, in terms of Order 49 of the Rules of the Supreme Court, no
order of attachment of debts could be made on money due or accruing to the
Crown. The immunity of the Crown is
actually provided for in the Crown Proceedings Act,1947. We must add
though that the Crown being referred to is the one obtaining in England and not
Malawi.
Secondly, using this authority, namely
Order 49 of the Rules of the Supreme Court, the court found and concluded that
in Malawi no garnishee order can be made in respect of Government funds. As we will shortly demonstrate, we will have
to depart from our earlier position where we erroneously imported the law
obtaining in England into Malawi.
Finally, we observe that this court had
earlier on concluded that since, pursuant to the provisions of Section 10 of
the Civil Procedure (Suits by or Against The Government or Public Officers)
Act, injunction or specific
performance does not lie against Government then no garnishee order can be made
in respect of Government funds.
We wish to observe that whilst it may be
true that, in terms of the said Section 10 of the Civil Procedure
(suits by or against the Government of Public Officers) Act, no injunction
or specific orders can issue against Government it was unsound for us to extend
this provision to include garnishee orders. We will shortly explain why we are
now of the view that it was wrong of us to extend the meaning and effect of
this provision. For now it will suffice
to say that it is obvious that in our earlier decision, in the National Bank
of Malawi case, we did not have recourse to the provisions of Section 8
of the said Civil Procedure (suits by or against Government or Public
Officers) Act. As a matter
of fact, if we had been referred to the stipulation in the said Section 8 our
opinion would have been different.
Having read this provision we are now of the view, and we find it as a
fact, that in Malawi it is possible to levy execution on Government
property. The only limitation being
that the execution cannot be done unless a decree of the court remains unsatisfied
for a period of three months. Thus a successful litigant has a wide choice as
regards how to enforce a judgment obtained against Government. A garnishee proceeding is one of those modes
of enforcing a money judgment against a judgment debtor. Following from this we erred in concluding
that a garnishee order cannot be made in respect of Government funds. The correct position is that in Malawi it is
possible to attach a debt due or accruing to the Malawi Government.
Is a garnishee
order the same as an order of injunction specific performance?
As we understand it, a garnishee order
is not the same as an injunction or an order of specific performance. It is trite knowledge that a garnishee is a
mode of enforcing a money judgment.
Injunctions or specific performance orders are not methods of enforcing
money judgments. Thus, contrary to our earlier decision in the National Bank
of Malawi case, garnishee proceedings are not caught by the provisions
of the said Section 10 of the Civil Procedure (suits by or against
Government or Public Officers) Act. The said Section 10 is very
clear in what it provides for. It does
not say that garnishee orders will not be issued in respect of debts due or
accruing to Government or Government department.
From what we have observed above, this
court finds and concludes that there is no law that precludes a successful
litigant from employing garnishee proceedings in order to enforce a judgment
debt due from government. Further, we
can do no better than quote and adopt the following observations of Chimasula,
J. in Tayamba General Dealers vs. Attorney General Civil Cause
No. 1889 of 2002 (unreported):
[a]
garnishee order is not an injunction or a specific performance order as
generally understood in legal circles.
Secondly, [the] Registrar should weigh pre-1994 constitutional order and
compare it with post May 1994 constitutional framework. Can rule of law exist where Government
want(s) to overprotect itself? If
Government wants to participate in Commercial Banks facilities it must realise
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 Government Department or agency account
[Emphasis
supplied by us]
As we understand it, there is no law in
Malawi that would stop government to obtain a garnishee order if it wanted to
enforce a judgment obtained against any other person. Yet in the National Bank of Malawi case this court
conferred government an immunity from garnishee orders in respect of funds due
or accruing to it. The immunity that we
conferred on government is not clearly spelt out in the said Civil Procedure
(suits by or against Government or Public Officers) Act. Indeed, it is against the rule of law if we
were to allow that government should be able to obtain a garnishee order in
respect of funds due or accruing to a person when it is impossible to do so
against Government funds. This is more
so where our legislature did not enact a law to shield government from the
effects of a garnishee order. In the
absence of law conferring immunity to government the court cannot justify its
decision that has the effect of shielding government by not subjecting it to
the same mode of enforcing judgment that it might employ against private
persons.
Further, we 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: Emma Sisya vs. The Attorney General
Civil Cause No. 72 of 1992 (unreported).
In the absence of a similar legislation in Malawi, prohibiting the
issuing of garnishee order in respect of Government funds, we cannot deny
litigants the opportunity to enforce money judgments against Government through
garnishee proceedings. We trust that Government will take legislative measures
to properly confer itself with immunity, like it is the case in England, from
the effects of garnishee orders. Until that is done garnishee orders will have
to be issued in respect of Government funds.
Conclusion
The long and short of it
is that this appeal succeeds with costs.
Handed down in Chambers this 10th
day of October 2003 at the Principal Registry, Blantyre.
F.E. Kapanda
JUDGE