IN
THE HIGH COURT OF MALAWI

LILONGWE
DISRICT REGISTRY

CIVIL
CAUSE NO. 872 OF 2005

BETWEEN

LILONGWE
CITY ASSEMBLY …………………………………….…...PLAINTIFF

-AND-

NATIONAL
FOOD RESERVE AGENCY …………………….…….DEFENDANT

-AND-

THE
SHERIFF OF MALAWI ………………..…………………………
3^RD
PARTY

CORAM : T.R.
Ligowe : Assistant Registrar

Nkhoma
(Miss) : Counsel for the Plaintiff

Chokotho
: Counsel for the Defendant

Tandwe
: Counsel for the 3^rd
Party

RULING

The plaintiff commenced action
against the defendant claiming K56 809 856.99 being city rates
arrears on the defendants property
on plot No. 29/92 in the city of
Lilongwe, surcharge on the said sum at 4% from 1^st
July 2005 to the date of judgment, K5 680 985.70 being indemnity for
collection costs, VAT of K994 172.50 and costs of the action.
No
notice of intention having been given by the defendant, the plaintiff
entered a judgment for the sums claimed and then issued
a writ of
fi.fa.
Afterwards the defendant applied for stay of execution pending an
application to set aside the judgment and an application that
sheriff
fees amounting to K8 593 464.72 should not be paid as the sheriff did
not execute. That is where the Sheriff is coming
in. I ordered that
the sheriff fees be paid into court as a condition for stay. The
defendant then applied to vary the condition
as they were unable to
pay the whole amount at one goal. K1 000 000 was therefore allowed to
be paid into court. So, there are
two applications before this
court.

Let me start with the
application to set aside the default judgment. This application is
supported by an affidavit and a supplementary
affidavit. In the
affidavit in support, counsel for the defendant deposes that he notes
that legal collection costs are calculated
at the rate of 10%. That
the defendant disputes owing the plaintiff city rates in the said
sums and would like to challenge the
same at trial. That he believes
having commenced this action the plaintiff was not entitled to claim
legal collection costs and
VAT thereon at the rate of 10% or at any
rate at all. That he believes the judgment herein was entered for an
excessive sum. In
the supplementary affidavit counsel deposes that
the defendant has a defence on the merits in that they do not owe the
plaintiff
the entire sums under the claim. A defence is exhibited
which among others avers that the defendant denies liability for the
sum
of K56 809 856.99 being city rates arrears and shall at trial
show that the defendant occupied plot No. 29/92 in the City of
Lilongwe
in the year 2001 and that the arrears due do not amount to
the sum claimed. That the defendant denies liability for surcharge at

the rate of 4% per month or any sum at all and puts the plaintiff to
strict proof thereof.

Counsel for the defendant
argues that the default judgment is irregular and has to be set aside
as of right on the basis that it
was entered for too much in that the
plaintiff having commenced action is not entitled to claim legal
collection costs. He further
argues that the defendant has a
meritorious defence.

Counsel for the plaintiff filed
and served an affidavit in opposition. I will not regard it as far as
it touches on the merits of
the claim as that would be tantamount to
trying the matter on affidavit evidence. However counsel deposes
that the defendant’s
application does not specify the irregularity
relied on or the order under which the application is brought. That
the affidavit
in support discloses a mere denial and not a
meritorious defence and that the default judgment is a regular
judgment, it was not
entered for too much.

I agree with counsel for the
plaintiff that there is an irregularity in the way the defendant has
made this application. Counsel
should have stated the order under
which he brings the application and should, if he relies on an
irregularity to set aside the
judgment, have specified the
irregularity in the summons. (Order 2 rule 2 of the Rules of the
Supreme Court). Counsel for the plaintiff
submits that the
defendant’s application ought therefore to be dismissed in that
respect. She relies on H.C.
Ngosi v. The Attorney General,
Civil Cause No 891 of 1995 (unreported), where W.W. Qoto, Deputy
Registrar, held such an application defective. That ruling is
not
binding on me but persuasive. However, on closely reading it, the
Deputy Registrar did not dismiss the application because
it had been
irregularly made. He rather considered the alleged irregularities and
found there was no substance in them. In the
present case, I will
consider the irregularities of the default judgment more so because
the plaintiff has proceeded to defend
the application as against the
said irregularity. Counsel has argued that the judgment was not
entered for an excessive sum and
if it happens to have been so
entered the court has inherent powers to amend it. She cited Armitage
v. Parsons
[1908] 2 K.B. 410.

What is a judgment entered for
too much? Under Order 13 rule 1(1) R.S.C. the plaintiff may enter
judgment “for a sum not exceeding
that claimed by the writ in
respect of the demand and for costs.” The underlying principle here
is that the amount for which
judgment is entered should carefully be
limited to the amount actually due at that time, and credit should be
given for payments
made after action brought. If a cheque is accepted
after the writ is issued, the judgment must not include the amount of
the cheque
during its currency, otherwise it will be irregular and
may be set aside ex
dibito justitiae. Bolt
& Nut Co. (Tipton) Ltd v. Rowlands Nicholls & Co Ltd.
[1964] 2 Q.B. 10 C.A. and Hughes
v. Justin [1894]
1 Q.B. 667. From that, a judgment entered for a sum exceeding that
claimed by the writ in respect of the demand will have
been entered
for too much. And, if a judgment is entered without giving credit to
payments made after action brought, it is entered
for too much. In
this case, the plaintiff should not have claimed legal collection
costs from the defendant, as under the Legal
Practitioners (Scale and
Minimum Charges) Ammendment Rules 2002, legal practitioners for the
creditor cannot claim legal collection
costs from the debtor. Under
Table 6 of the First Schedule to the said Rules, once action is
commenced, legal practitioners may
only charge solicitor and own
client charges in addition to party and party costs. J.L.
Kankhwangwa et al v. Liquidator Import and Export (Malawi) Ltd,
MSCA Civil Appeal Cause No 4 of 2004. Thus a plaintiff is not
entitled to indemnity for legal collection costs after action
commenced.
In this case therefore, judgment having been entered for
indemnity for collection costs and VAT thereon, was entered for too
much
and the defendant is entitled to set it aside ex
debito justitiae. I
don’t believe the judgment was inadvertently entered for too much
to warrant the court to exercise its powers to amend it
under Order
20 rule 11 of RSC. I therefore set it aside with costs. The defendant
should serve its defence within seven days from
the date hereof.

Let us now consider the second
application. Whether sheriff fees and expenses are payable to the
sheriff in this case.

It is deposed in the affidavit
in support that the Sheriff of Malawi visited the defendant on 14^th
September 2005 and did not seize any goods but is claiming Sheriff
Fees and costs in the sum of K8 603464.72.

The Sheriff’s affidavit in
opposition deposes that he executed the warrant on 14^th
August 2005. He met Mr. Mlundira who was then transacting on behalf
of the General Manager for National Food Reserve Agency as
the
General Manager had gone out to City Centre for a meeting. Mr.
Mlundira asked the Sheriff to come again in the afternoon at
2.00 pm
to collect the money since by then the General Manager would have
authorized the payment. When the sheriff came back at
2.00 pm, he
found the General Manager had gone to attend a Presidential function
and Mr. Mlundira was not in office. He then decided
to seize goods
and made a walking possession of Toyota Hilux Reg. No. BL 9622,
Mitsubish Colt Reg. No. SA 4064, Toyota Corolla
Reg. No. BL 6859,
Toyota Hilux Reg. No. BL 3341 plus a Gestetner Copier and 3 Dell
Computer sets. He did not remove them because
he had no drivers for
the vehicles and he wanted to allow the users of the computers to
remove what they called ‘vital’ information
for the distribution
of maize in the current food crisis. He left a seizure note with a
secretary which has been exhibited to the
affidavit and marked DK1.
When he returned around 4.00 pm with drivers he found the vehicles
had been removed. The following day
he was served with an order
staying execution before he removed the goods. These facts are not in
dispute at all.

I think the starting point on
this issue should be item 23 of the Schedule to the Courts Act. The
Schedule fixes the scale of fees
payable to the sheriff and makes it
clear that the fees are to be chargeable, once seizure is made, even
where the execution is
withdrawn, satisfied or stopped. The question
is whether the Sheriff in this case seized the goods. A similar
question had to be
addressed by Skinner C.J. in Maunde
v. National Bank of Malawi
10 MLR 392. This is what he said:

“What constitutes seizure is
summarized in the following passage in 16 Halsbury’s Laws of
England, 3^rd
ed., para. 84, at 55:

“…[B]ut some act must be
done sufficient to intimate to the judgment debtor or his servants
that a seizure has been made, and it is
not sufficient to enter upon
the premises and demand the debt. Any act which if not done with the
authority of the court, would
amount to a trespass to goods will
constitute a seizure of them if done under the writ. Whether or not
there has been a seizure
is a question of fact.””

In addition to the quotation
above I find Jowitt’s Dictionary of English Law 2^nd.
Ed. Volume 1, p. 789 helpful. It is there stated:

“In executing the writ, the
officer enters upon the premises in which the execution debtors goods
are and makes a formal seizure
of them. Sometimes he leaves one of
his assistants in possession of them, but usually he makes what is
known as a “walking possession”
i.e. he obtains the debtor’s
signature to a form undertaking not to remove the goods or he calls
at intervals to see that the
goods are safe.”

The Sheriff in this case has
deposed in his affidavit that he left a seizure note with the
secretary exhibited as DK1. DK1 clearly
shows that the items listed
there-under had been seized, to be removed if payment would not be
made by 4.00 pm on that day. In
my judgment that was sufficient
intimation of the seizure. DK1 is therefore a formal notice of
seizure. Let me point out that since
the Sheriff’s attendance at
the defendant’s premises, at 2.00 pm when he seized the goods, he
attended again at 4.00 pm the
same day to remove the goods when he
found the vehicles had been removed by the defendant. The goods were
not supposed to be removed
in view of the seizure note, DK1. In fact,
that they were removed amounts to an offence under s.14 of the
Sheriff’s Act. The
constant attendance of the Sheriff at the
defendant’s premises shows the sheriff did not abandon execution
but was prevented
from removing them as the defendant had already
removed them. And before he removed the goods the following day, he
was served
with an order of stay. I find that the Sheriff is
entitled to his fees and expenses.

The plaintiff herein is ordered
to pay the sheriff fees and expenses as the default judgment was
entered irregularly. The plaintiff
must therefore reimburse the
defendant the K1 000 000 that was paid into court and finish up
paying the fees and expenses within
14 days from the date hereof.

The defendant’s costs in the
cause.

Made in chambers this ………
day of March 2006.

T.R.Ligowe

ASSISTANT REGISTRAR