IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE NO. 701 OF 2005
A.D.L. .. PLAINTIFF
PAUL MAULIDI . DEFENDANT
Coram: T.R.Ligowe: Assistant Registrar
Maulidi : Counsel for Defendant
Liwimbi : Counsel for Plaintiff
This is the defendants 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 plaintiffs 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 21st 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 defendants 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 29th June 2005 that any arrears due were payable by 31st July 2005 and eviction could only be done after 7th August 2005. That the sheriff apart from seizing some of the defendants 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 29th June 2005 and whether the manner in which the sheriff executed it was right.
The plaintiffs affidavit in reply deposes that the defendant has always been aware of the details of the arrears through the letter dated 29th June 2005, a notice of eviction dated 21st April 2005 and another dated 24th 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 29th 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 Megarrys 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 29th 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 21st 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:
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.
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 defendants application is therefore dismissed with costs.
Made in chambers this . Day of August 2005.