Sheriffs Act
Chapter 3:05
An Act to make provision for the appointment of Sheriffs and other officers, to set out their respective powers and duties and the manner of the exercise thereof, and for matters incidental thereto
Part I – Preliminary
1. Short title
This Act may be cited as the Sheriffs Act.
2. Interpretation
In this Act, unless the context otherwise requires-"court" means the High Court and a subordinate court;"judgment debtor" means a person liable under a judgment;"process" means a formal written authority issued by a court for the enforcement of a judgment and includes a warrant of possession and any warrant or order of arrest, commitment or imprisonment;"Sheriff" includes the Sheriff of Malawi appointed under section 3(1), any Deputy Sheriff, any Under-Sheriff and any Assistant Sheriff appointed under section 3(2);"subordinate court" bears the meaning ascribed to that term by section 2 of the Courts Act;"warrant" includes writ.
Part II – Appointment of Sheriff and other officers
3. Appointment of Sheriff, Deputy Sheriff, Under-Sheriff and Assistant Sheriffs
(1)The President may appoint a person to be Sheriff of Malawi.(2)The President may appoint one or more persons to be Deputy Sheriffs or to be Under-Sheriffs and as many persons as he deems necessary to be Assistant Sheriffs.(3)In the exercise of his powers and in the performance of his duties under this Act, a Deputy Sheriff, an Under-Sheriff and an Assistant Sheriff shall be subject to any general or special directions of the Sheriff. A Deputy Sheriff, an Under-Sheriff and an Assistant Sheriff shall have the same powers and protection as the Sheriff.(4)Unless and until other appointments are made to such offices under this section-
(a)the Registrar of the High Court shall be the Sheriff; and(b)each District Commissioner shall be an Assistant Sheriff.
4. Sheriff, etc., to be officers of court and they and persons acting under their directions or authority deemed employed in public service
(1)The Sheriff, a Deputy Sheriff, an Under-Sheriff and an Assistant Sheriff shall, in the performance of his duties in connection with any process, be an officer of the court by which such process was issued.(2)The Sheriff, a Deputy Sheriff, an Under-Sheriff, an Assistant Sheriff and any person acting under the directions or authority of any of them shall for the purposes of the Penal Code be deemed to be persons employed in the public service.5. Delegation of duties
Every duty of the Sheriff in connexion with any process may be performed by such police officer or other person as may be authorized in that behalf by the Sheriff and every such officer or person who is in possession of such process shall be presumed to be so authorized, and shall, for all purposes connected therewith, be an officer of the court by which such process was issued:Provided however that without the prior approval of the Commissioner of Police the Sheriff shall not authorize a police officer to perform any duty under a civil process involving the seizure and sale of any moveable property.
Part III – Enforcement of judgments and orders against moveable property and committals, etc.
6. Execution of judgments or orders for sum of money
(1)Any sum of money payable under a judgment of a court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by seizure and sale of the moveable and immoveable property of the judgment debtor in accordance with this Act.(2)The court on the application in the prescribed manner of the judgment creditor shall cause to be issued a warrant of seizure and sale whereby the Sheriff shall be empowered to seize and sell the moveable property of the judgment debtor, wherever it may be found in Malawi, to enforce payment of the amount due under the judgment and of the costs of the execution.(3)The precise time of the making of an application to the court for the issue of a warrant shall be entered by it in the book prescribed for the purpose and on the warrant, and when more than one such warrant is issued they shall be executed in the order of the times so entered.7. Execution of orders for payment by instalments
(1)Where a court has made an order for payment of any sum of money by instalments, no warrant of execution for the enforcement of the judgment shall be issued until after the default in payment of some instalment according to the order.(2)On any such default, execution or successive executions may issue for the whole of the said sum of money and costs then remaining unpaid, or for such part thereof as the court may order, either at the time of making the original order or at any subsequent time.8. Execution to be superseded on payment
(1)In or upon every warrant of seizure and sale of the property of any person, the court shall cause to be inserted or endorsed the sum of money and costs adjudged, and the fees for the execution of the warrant.(2)If the judgment debtor, before the actual sale of the property, pays or causes to be paid or tendered to the court from which the warrant issued, or to the Sheriff holding the warrant, the sum of money and costs inserted or endorsed as aforesaid, or such part thereof as the judgment creditor agrees to accept in full satisfaction, together with the fees inserted or endorsed as aforesaid, the execution shall be superseded, and the property of the judgment debtor shall be discharged and set at liberty.9. Power to suspend execution
If at any time upon an inquiry made on the application of the judgment debtor, wherein the onus of proof shall be upon him, it appears to the satisfaction of the court that the judgment debtor has made a full surrender and disclosure of his property in the prescribed manner, and that he is unable because of unavoidable misfortune to satisfy the judgment, and that he has not been guilty of any misconduct cognisable by the court, and that his property ought to be released from attachment, the court may, in its discretion, stay any warrant of execution issued in the proceedings for such time and upon such terms as the court thinks it, and so from time to time until it appears that the cause of inability has ceased.
10. Execution of warrants of possession
For the purpose of executing a warrant to give possession of any premises, it shall not be necessary to remove any movable property from those premises.
11. Property which may be seized
(1)The Sheriff executing any warrant of execution issued from a court against the movable property of any person may by virtue thereof seize-
(a)any of the movable property of that person, except the wearing apparel and bedding to the value of fifteen pounds of that person or his family, the tools and implements of his trade, to the value of ten pounds, and the food of that person or his family to the value of ten pounds, which shall to that extent be protected from seizure; and(b)any money, bank notes, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to that person.(2)The Sheriff shall become the special owner of movable property upon its being seized by him under this Act.12. Custody of property seized
Movable property seized in execution under process of a court shall until the sale thereof-
(a)be deposited by the Sheriff in some fit place; or(b)remain in the custody of a fit person approved by the Sheriff; or(c)be safeguarded in such other manner as the Sheriff directs.
13. Disposal of bills of exchange, etc., seized
The sheriff shall hold any bills of exchange, promissory notes, bonds, specialties or other securities for money seized in execution under process of a court as security for the amount due by the judgment debtor for the benefit of the judgment creditor, and the judgment creditor may sue in the name of the judgment debtor, or in the name of any person in whose name the judgment debtor might have sued, for the recovery of the sum secured or made payable thereby, when the time of payment thereof arrives.
14. Penalty for obstructing execution
If any person rescues or attempts to rescue any property seized in execution under process of a court or in any other way resists or obstructs the execution of any process for the enforcement of a judgment of a court, he shall be liable to a fine of £100, and the sheriff may take him into custody with or without warrant, and bring him before the court.
15. Period to elapse before sale
(1)No movable property seized in execution under process of a court shall be sold for the purpose of satisfying the warrant of execution until the expiration of a period of at least ten days next following the day on which the property has been so seized unless-
(a)the property is of a perishable nature; or(b)the person whose property has been seized so requests in writing:Provided that-
(a)the Sheriff may, if he is unable from want of time to complete the sale, adjourn the same for a period of not more than three days, and so on as often as may be necessary;(b)the court may, if it thinks it, direct that the sale shall be postponed for any time not exceeding twenty-eight days after the seizure.
(2)Subject to any directions of the court, movable property seized shall be set up for sale at such place as the Sheriff shall consider appropriate. Every such sale shall take place between the hours of seven o'clock in the morning and eight o'clock in the evening, and everything set up for sale shall be knocked down to the highest bidder for ready money.(3)Notice of the day and hour of sale of any property seized shall be published four days at least before the day of such sale, by being posted upon the door of the court house nearest the place in which the seizure is made and where the sale is to take place at some other place, then at that other place also, and if the court so directs in a newspaper published in Malawi.16. Sales under execution to be published unless otherwise ordered
(1)Where any property is to be sold under a warrant for a sum exceeding twenty pounds, including proper incidental expenses, the sale shall, unless the court from which the warrant issued otherwise orders, be made by public auction, and shall be publicly advertised by the Sheriff on the day of sale and the three next preceding days.(2)Where any property is seized in execution and the court has notice of another execution or other executions, the court shall not consider an application for leave to sell privately until the prescribed notice has been given to the other execution creditor or creditors, who may appear before the court and be heard on the application.(3)If a person who holds a valid auctioneer's licence under the Businesses Licensing Act sells by public auction any movable property attached on the instructions of the Sheriff, the Sheriff may pay such person his charges for the sale and such payment shall be a first charge on the proceeds of the sale.17. Delivery of movable property in possession of judgment debtor
Where the property sold shall consist of movable property in the possession of the judgment debtor, or to the immediate possession of which the judgment debtor is entitled, and of which actual seizure has been made, the property shall be delivered to the purchaser.
18. Priority of warrants
When warrants against the property of any person have been issued from more than one court, the right to the proceeds of the property seized shall, subject to section 43 of the Bankruptcy Act, be determined according to the order of priority of the respective times of application to the courts for the issue of the warrants.
19. Sales, the title obtained thereat and prohibition of certain purchases
(1)Where any movable property in the possession of a judgment debtor at the time of seizure by the Sheriff is sold by the Sheriff without any claim having been made to the same, the purchaser of the property so sold shall have a good title to the property so sold and no person shall be entitled to recover against the Sheriff or anyone lawfully acting under his authority except as provided by the Bankruptcy Act for any sale of such property or for paying over the proceeds thereof unless it is proved that the person from whom recovery is sought had notice or might by making reasonable inquiry have ascertained that the property was not the property of the judgment debtor:Provided that nothing in this section contained shall affect the right of any claimant who may prove that at the time of the sale he had a title to any property so seized and sold to any remedy to which he may be entitled against any person other than such purchaser, Sheriff or person lawfully acting under the authority of the Sheriff.(2)Neither the Sheriff nor any police officer or other person acting under the directions, authority or instructions of any Sheriff in connection with the seizure or sale of any property seized under any process shall himself, or by any other person on his behalf, purchase such property at such sale.20. Claims to property seized and interpleader by Sheriff
(1)If a person (hereinafter in this section referred to as the claimant) claims any movable property seized in execution under any process, or the proceeds or value thereof, he shall first give notice in writing thereof to the Sheriff in such form, if any, as may be prescribed. The Sheriff shall thereupon serve copies of such notice in the manner prescribed for the service of any document of the court out of which the process issued upon the execution creditor and upon any other person he considers to be interested in the property.(2)The Sheriff shall hold the property claimed for 14 days from the date upon which the last person was served with a copy of the claim under subsection (1) and if such claim is not disputed by any of the persons upon whom copies of the claimant's notice have been so served within such 14 days the Sheriff may deliver the property in question to the claimant.(3)If the claimant's claim is disputed, the person disputing it shall give notice in writing in such form, if any, as may be prescribed to the Sheriff, who shall forthwith apply to the court from which the process was issued and such court shall issue a summons calling before the court the party at whose instance the process issued and the claimant.(4)Upon the issue of the summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the warrant shall be stayed.(5)On the hearing of the summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the Sheriff upon any claim to damages arising or capable of arising out of the execution of the warrant by the Sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks it.21. Claims for rent where property seized in execution
(1)The landlord of premises in which any property is seized may claim the rent of the premises in arrear at the date of the seizure, at any time within five days next following that date, or before the removal of the property, by delivering to the Sheriff making the seizure a claim in writing, signed by himself or his agent, stating-
(a)the amount of the rent claimed to be in arrear; and(b)the period in respect of which the rent is due.(2)Where such a claim is made, the Sheriff making the seizure shall in addition thereto distrain for the rent so claimed and the cost of the distress, and shall not within five days next after the distress, sell any part of the property seized, unless-
(a)the property is of a perishable nature; or(b)the person whose property has been seized so requests in writing.(3)The Sheriff shall afterwards sell under the execution and distress such of the property as will satisfy-
(a)first, the costs of and incidental to the sale;(b)next, the claim of the landlord not exceeding-
(i)in a case where the tenement is let by the week, four weeks' rent;(ii)in a case where the tenement is let for any other term less than a year, the rent of two terms of payment;(iii)in any other case, one year's rent; and(c)lastly, the amount for which the warrant of execution issued.(4)The fees of the court and Sheriff for keeping possession and sale under any such distress shall be the same as would have been payable if the distress had been an execution of the court, and no other fees shall be demanded or taken in respect thereof.22. Surplus after sale, residue of property, etc.
Any surplus of a sale by a Sheriff under this Act, and any residue of property seized shall be returned to the judgment debtor.
23. Property subject to lien
Where the property sold shall consist of movable property to which the judgment debtor is entitled, subject to a lien or right of any person to the immediate possession thereof, the delivery to the purchaser shall, as far as practicable, be made by the sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.
24. Issue and execution of orders of committal
(1)Whenever any order or warrant for the committal of any person to prison is made or issued by a court, in any civil proceeding, whether in pursuance of this or any other written law or of rules of court made under this Act, the order or warrant shall be directed to the Sheriff, who shall thereby be empowered to take the body of the person against whom the order is made or warrant issued, and deliver him to the officer in charge of the prison mentioned in the order or warrant.(2)The officer in charge of the prison mentioned in any such order or warrant shall be bound to receive and keep the person therein mentioned until he is lawfully discharged.Part IV – Enforcement of judgments against private land not registered in the Lands Register
25. Application of Part
This Part shall apply to the enforcement of judgments against private land other than land registered in accordance with the Registered Land Act. Such enforcement shall be effected in the manner provided for in this part and not otherwise.
26. Judgment creditor to file affidavit
(1)Where any judgment shall be entered in the High Court it shall be lawful for the judgment creditor at any time within six years of the date of such judgment (or after the expiration of six years with special leave of the High Court) to file with the Registrar an affidavit containing the following averments-
(a)the name or title of the cause or matter;(c)that full execution has been levied against the movable property of the debtor;(d)full particulars of the amount of the debt and interest with which the lands are sought to be charged;(e)the full name, address and description of the debtor;(f)that the debtor is seized or possessed of private land in Malawi other than land registered in accordance with the Registered Land Act, or that he has a disposing power capable of uncontrolled exercise in his own favour over such lands;(g)a description of such lands sufficient for their proper identification, and reference to the dates and deed numbers under which the title deeds to the said lands are registered in the Deeds Registry office.(2)An affidavit filed under this section shall be chargeable with the stamp duty chargeable upon a mortgage of lands for the same sum as that specified in the affidavit under subsection (1)(d).27. Memorandum of approval by Registrar
Upon the filing of an affidavit under section 26, the Registrar shall examine the affidavit, and if the same be regular and contain all that is required by section 26 he shall endorse a memorandum of approval thereon.
28. Registration in Deeds Registry Office
It shall then be lawful for the judgment creditor who has sworn and filed such affidavit to register the same in the Deeds Registry Office by presenting to the Deeds Registrar an office copy of such affidavit authenticated by the Registrar, and such copy shall be registered under and be subject to the Deeds Registration Act.
29. Effect of registration
The registration of any such affidavit as aforesaid shall operate to vest in the judgment creditor registering such affidavit all the judgment debtor's estate and interest in the lands specified in such affidavit, subject to all such equities as may belong to other persons and subject to the judgment debtor's equity of redemption.
30. Execution of judgments of subordinate courts against land
No execution against land shall issue direct upon a judgment obtained in a subordinate court, but on the application of a judgment creditor on notice to the judgment debtor a judge shall have power to order that such subordinate court judgment be removed and entered as a High Court judgment, whereupon, for the purposes of this Part, such judgment shall forthwith be deemed to be a judgment of the High Court.
31. Satisfaction of judgment
Whenever satisfaction of a judgment, in respect of which an affidavit has been registered in the Deeds Registry Office, has been entered up by the Registrar, upon production of the Registrar's certificate of satisfaction the Deeds Registrar shall cause a memorandum of satisfaction to be made against the entry of such affidavit in the Deeds Register and such memorandum of satisfaction shall also be endorsed on the certified copy affidavit filed in the Deeds Registry Office; whereupon the lands of the judgment debtor shall become freed and discharged from the charge created by such affidavit and such affidavit shall stand expunged.
32. Order for sale
Where an affidavit has been registered against the lands of a judgment debtor as aforesaid and provided the judgment in respect of which such affidavit has been registered remains unsatisfied, then the judgment creditor, at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor's interest in so much of the lands specified in the affidavit as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.
33. Notice of application
Such application shall be by summons on fourteen days' notice to the judgment debtor and to all other parties who appear to be interested in the lands.
34. Powers of High Court in regard to sale
On the hearing of the summons the High Court may direct all such inquiries to be made as to the nature of the debtor's interest and title (or otherwise) as shall appear proper, and, upon any order for sale being made, such sale shall be carried out in all respects in accordance with the directions of the High Court. All applications relating to the sale, subsequent to an order for sale, shall be made to a judge in chambers or otherwise as the judge shall direct.
35. Application for stay
Any person who claims to be interested in any lands for the sale of which an order has been made may apply to the High Court to stay the sale and the High Court may, after hearing all necessary parties, give such directions and make such order as to the High Court shall appear proper and just.
36. Land to be sold by public auction
Every sale of lands in satisfaction of a judgment shall be made by public auction unless the High Court for special reasons shall otherwise direct.
37. Movable property to be first proceeded against
No judgment creditor shall, except by express leave of the High Court, register an affidavit under this Part against the lands of his judgment debtor until he has first endeavoured to recover the amount of his judgment debt by warrant of execution against the movable property of the judgment debtor and such execution has failed by reason of the insufficiency of the movable property seized to discharge the sum due or unless it appears that the judgment debtor has no movable property in his possession.
38. Protection of officers
Neither the Deeds Registrar, nor the Registrar, nor any other person shall be liable to any action, suit or proceeding for or in respect of any act or matter done in good faith or omitted to be done in the exercise, or supposed exercise, of the powers conferred by this part or in pursuance of any order made under it.
39. Appeal from Deeds Registrar or Registrar
Any person aggrieved by any decision of, or anything done or omitted by, the Deeds Registrar or the Registrar under this Part may appeal to a judge in chambers, and such appeal may be disposed of without formal notice of appeal unless the judge shall otherwise direct.
Part V – Enforcement of judgments against land registered in the Lands Register
40. Application of Part
This Part shall apply to the enforcement of judgments against land registered in the Lands Register under the Registered Land Act, and no other land. Such enforcement shall be effected in the manner provided for in this Part and not otherwise.
41. Inhibition order against registered land, etc.
(1)Where any judgment shall be entered in the High Court it shall be lawful for the judgment creditor at any time within six years of the date of such judgment (or after the expiration of six years with special leave of the High Court) to apply to the High Court for an order upon such terms as appear to such court to be just under section 123 of the Registered Land Act, inhibiting the registration of any dealing with any land, lease or charge or with any interest in such land, lease or charge registered under the Registered Land Act, of which the judgment debtor is registered as proprietor.(2)An order under section 123 of the Registered Land Act, may be made notwithstanding that full execution has not been levied against the judgment debtor's movable property.42. Order for sale of registered land, etc.
Where a copy of an order under section 123 of the Registered Land Act has been registered in the Land Register and provided that the judgment in respect of which such order has been registered remains unsatisfied, full execution having been levied against any movable property of the judgment debtor, then the judgment creditor at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor's interest in so much of the land, lease or charge specified in such order as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.
43. Application of sections 33, 34, 35 and 36 to sales, etc., under this Part
Sections 33, 34, 35 and 36 shall, with any necessary modifications, apply to the sale of any interest in any land, lease or charge under this Part as they apply to a sale of land under Part IV.
Part VI – Miscellaneous
44. Indemnity of Sheriff, etc.
(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.(2)The Sheriff shall not be liable to be sued for any act or omission of any police officer or other person in the service of any document or the execution of any process which shall have been done, or omitted to have been done, or which may have occurred either through disobedience to or neglect of the orders or instructions given by the Sheriff.(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.45. Appearance by Sheriff and costs against Sheriff
In any civil proceedings before a court the Sheriff may appear in person or may be represented by a legal practitioner. In no proceedings shall a court order all or any part of the costs thereof to be paid by the Sheriff unless it considers that the claim involved arose, or was resisted, as the case may be, by reason of bad faith on the part of the Sheriff.
46. Sheriff's powers of entry, search, etc.
(1)In order to execute any process the Sheriff may enter any dwelling-house or other building by means of-
(a)an open door or an open window;(b)an open door or an open window which he further opens; or(c)a door or window which he opens by any usual means including the turning of a key or handle, the lifting of a latch or the drawing of a bolt:Provided however that-
(i)for the purpose of executing a warrant for the arrest of any person or for the seizure of any property the Sheriff shall not so open a door or window of any dwelling-house of any person other than the person to be arrested or the judgment debtor whose property is to be seized unless he believes on reasonable grounds such person to be arrested or property is within the dwelling-house;(ii)for the purpose of executing a warrant for the arrest of any person or for the seizure of any property the Sheriff may, if so authorized by an order of the court which issued such warrant, use force to open a door or window of any building other than a dwelling-house or building within the curtilage of a dwelling-house of the person to be arrested or the judgment debtor whose property is to be seized.
(2)Once he has gained lawful entry to any building the Sheriff may for the purpose of executing any process-
(a)without prior demand, use any reasonable force and may break open any inner door, cupboard, box, trunk or other container;(b)if thereafter forcibly expelled, without prior demand, use any reasonable force to gain re-entry; and(c)break open any outer door to enable any property seized to be taken away if there is no other means of opening the door or if a demand to open it is refused by the judgment debtor or the person whose building it is.(3)In this section, "Sheriff" includes any person authorized by him.47. Rules
(1)The Chief Justice may make rules-
(a)prescribing the forms to be used for the purposes of this Act;(b)prescribing the fees, poundages and allowances which the Sheriff may demand, take and receive;(c)generally for the better carrying out of the purposes of this Act.(2)Such rules may require the judgment creditor-
(a)to make deposits in court to cover the anticipated expenses of attempted execution;(b)to accompany the Sheriff and point out the debtor's property.48. Saving of existing forms, fees, etc.
All forms prescribed for use in connection with the execution of judgments by a Sheriff, and all fees, poundages and allowances payable to him under any written law in force immediately prior to the commencement of this Act shall, until amended or varied by rules made under section 47 continue to be used or payable or allowable as if the same had been prescribed or fixed under rules made under section 47.
49. Partly completed executions
Nothing in this Act contained shall invalidate anything done in connection with the execution of any process which has not been completed at the time of the coming into operation of this Act and such execution may be continued and completed in accordance with the law in force immediately prior to such coming into operation or, if the court which issued such process shall so direct in accordance with this Act.
50. Saving
Nothing contained in this Act shall in any way affect any of the provisions of the Army Act relating to the execution of processes against officers or soldiers of the Malawi Army or their property.