IN
THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE NO. 701 OF 2005

BETWEEN

A.D.L. ………………………………………………………………………..
PLAINTIFF

AND

PAUL MAULIDI ………………………………………………………….
DEFENDANT

Coram: T.R.Ligowe:
Assistant Registrar

Maulidi : Counsel for
Defendant

Liwimbi : Counsel for
Plaintiff

RULING

This is the defendant’s application to set aside the notice of
distress for rent the plaintiff issued in this case on the ground

that it was irregularly issued and executed.

The facts of the case are that the defendant occupies the plaintiff’s
house number LB682 situate at Lumbadzi Housing Estate as
a tenant.
The tenancy agreement however has not been formalized and reduced to
writing since the defendant occupied the house in
July 2004. The
defendant having been in arrears in rentals, the plaintiff caused a
notice of distress for rent to be issued on
21^st June 2005
for the sum of K93 541.50 being the arrears for rent and attendant
costs from January to June 2005.

The particulars of the irregularity are set out in the defendant’s
affidavit in support of the application. They are that the
notice of
distress for rent was issued without notice to the defendant. No
details of any arrears due were given. That the plaintiff
gave notice
to the defendant by a letter dated 29^th June 2005 that any
arrears due were payable by 31^st July 2005 and eviction
could only be done after 7^th August 2005. That the sheriff
apart from seizing some of the defendant’s property in the house
sealed the house off with the
other property inside. That the notice
of distress was for too much. It did not take into account the
payments of K24 000 and K20
000 the defendant had made to the
plaintiff.

Quite apart from the irregularity, the defendant states that he did
not pay the rentals in time and regularly because the plaintiff
had
not carried out the repairs to the doors and the geyser they had
undertaken to do after the defendant took possession of the
house.

During hearing counsel for the defendant did not object to there
being arrears for rent on the house but said there is a dispute

between the parties as to their extent. He told the court not to
bother with finding how much rentals are actually in arrears as
he
said that was not the subject matter of his application. By saying
that to me he sounded like he was not going to argue on the
fact that
the notice of distress was issued for too much. In fact he did not
pursue with that argument. However, he argued there
are two issues in
this matter. Whether the notice of distress for rent was warranted in
the light of the letter of 29^th June 2005 and whether the
manner in which the sheriff executed it was right.

The plaintiff’s affidavit in reply deposes that the defendant has
always been aware of the details of the arrears through the
letter
dated 29^th June 2005, a notice of eviction dated 21^st
April 2005 and another dated 24^th November 2004. The
plaintiff disputes the K24 000 payment and deposes that the defendant
is now K89 200 in arrears.

I will not dwell much on the extent of the arrears in rent suffice to
say that it is not disputable that rentals were in arrears
and due.
The letter of 29^th June 2005 was written well after the
notice of distress for rent had already been issued. It therefore has
no bearing on the distress.

Although counsel for the defendant kept on referring to the tenancy
agreement between the plaintiff and the defendant as loose
because it
had not been reduced to writing, it is evident however that there is
an enforceable agreement between the parties. There
is therefore a
covenant by the tenant to pay rent. A landlord may enforce payment of
the rent by among others, distress. Distress
in essence consists of
the right of the landlord, exercisable without application to the
court but ordinarily exercised by a court
certificated bailiff, to
enforce payment by seizing and selling enough of any goods found on
the premises. See Megarry’s Mannual of the Law of Real
Property, Sixth Edition, page 366. There is therefore no need
for any notice to the tenant whatsoever before a notice of distress
for rent is issued so long as rentals
are due and payable.

In the present case, the defendant needed not to be warned of an
oncoming notice of distress for rent. The rentals (whatever the

amount was) were due and payable. The letter of 29^th June
2005 has nothing to do with the notice of distress for rent. The
plaintiff was therefore within the law to issue the notice
of
distress for rent on 21^st June 2005. There is nothing
irregular with it. However there seems to be no dispute on the fact
that the notice of distress for
was wrongfully executed. The sheriff
was only sent to distrain goods and chattels but he sealed up the
house. Counsel for the plaintiff
submitted that that does not concern
the plaintiff. The defendant has to take it up with the sheriff. At
this juncture section
44 of the Sheriffs Act will guide. It provides:

1. 
   The Sheriff, Under-Sheriff, an Assistant Sheriff and a person duly
   authorized to carry out any duty of any of them in connection
   with
   any process shall not be liable to be sued for the proper exercise
   in manner authorized by law of any process which he is
   by this Act
   bound to execute nor shall he be liable by reason only of any want
   or irregularity in any proceedings in which such
   process was issued
   or in the form of such process.

   
   

3. 
   In the case of the execution of any process, all steps which may
   lawfully be taken therein shall be taken on the demand of
   the
   party who issued such execution and such party shall be liable for
   any damage and costs arising from any irregular or illegal

   proceeding taken at his instance.
   

   
   

In the present case the notice of distress for rent is regular and
legal but the manner in which it was executed by the sheriff
is
improper. Thus the plaintiff can not be liable for it but the
sheriff. The defendant’s application is therefore dismissed
with
costs.

Made in chambers this ………. Day of August 2005.

T.R. Ligowe

ASSISTANTN REGISTRAR