Makda t/a Mak Investments v Unipro Enterprises Software Ues Malawi Ltd (Civil Cause No. 467 of 2005) ((Civil Cause No. 467 of 2005)) [2005] MWHC 49 (01 February 2005);










CORAM : T.R. Ligowe : Assistant Registrar

Mwale : Counsel for the Claimant

Chinoko : Counsel for the Plaintiff


This is a Sheriff’s Interpleader summons. The plaintiff obtained an order of attachment of property against the defendant under Order VIII of the Rules of the High Court, ordering the defendant’s motor vehicle Isuzu Pick Up Registration No. 4649 be the subject of seizure and the same be kept as security for the satisfaction of the plaintiff’s claim herein and any other expenses that may ensure from the seizure.

The claimant filed an affidavit in which Mchuka George Mwale deposes that the claimant is a private company that was incorporated on 31st December 2004 under the Companies Act. That upon incorporation the claimant purchased assets at book value from the defendant, which assets included the motor vehicle in question. An invoice was issued to the claimant for the purchased assets. The invoice is exhibited and marked “MGM 2.” The defendant further issued a letter dated 31st December 2004 authorizing the claimant to transfer the vehicle and it is exhibited and marked “MGM 3.” That the defendant issued another letter exhibited and marked “MGM 4” stating that the claimant is not responsible for the defendant’s liabilities and were to vacate the plaintiff’s premises by 31st March 2005. That the defendant’s Director swore an affidavit before a commissioner for oaths in South Africa confirming the existence of the above transactions. The affidavit is exhibited and marked “MGM 5.” That although the vehicle was bought in 2004, it was only registered on 19th May 2005 in the name of the claimant because of insurance reasons and delays at the Road Traffic. Counsel for the claimant argues that failure to register ownership of the vehicle did not affect title of the vehicle which passed upon full payment to Unipro Enterprises and letter of transfer being issued. He therefore submits that legal ownership of the vehicle in question was transferred to the claimant.

The plaintiff’s affidavit in opposition sworn by Mike Chinoko, counsel for the plaintiff deposes among others that exhibits MGM 2, MGM 3 and MGM4 in the claimant’s affidavit are dubious in nature and must have been written after the sheriff seized the vehicle on 11th May 2005. They were backdated to 31st December 2004. They were sent by fax on 13th May 2005 and Counsel wonders why the claimant does not have copies of the same but had to wait for faxed copies after the vehicle had already been seized. That at the time the vehicle was seized; it was still registered under the name of the defendant. The claimant changed title of the vehicle on 19th May 2005 to defeat the plaintiff’s claim. That it’s not true that the delay in changing the registration of the vehicle was occasioned by insurance and delays at the Road Traffic. There is no insurance requirement in registering a motor vehicle at Road Traffic and once a person pays, change of registration is effected the same day. The claimant paid on 19th May 2005 and the change was effected the same day. A Road Traffic receipt is exhibited and marked MC 2.

It is further deposed that the plaintiff contends that the claimant and the defendant are one and the same. That when the same vehicle was seized on 12th March 2005 under a warrant of distress for rent, the claimant did not claim that the vehicle was theirs but settled the claim, first by cheque which was referred to drawer and then by cash and the goods seized were released. That the fact that the claimant paid raises suspicion as MGM 4 states that the claimants are not responsible for the defendant’s lease. That the claimants’ Country Director Mr. Bhisham Kanda has been transacting the defendant’s business both on the issue of rent and the vehicle being claimed. When the plaintiff wrote the defendant on outstanding payments, which letter is exhibited as MC 7, the claimant acknowledged receipt of the letter and paid by cheque, a copy of which is exhibited as MC 5, and the covering letter MC 6. That Mr. Bhisham Kanda signed on behalf of the defendant an agreement that was executed between the plaintiff and the defendant on 27th April 2005, which agreement was to the effect that the plaintiff would do renovations to the building the defendant was renting from the plaintiff but to be indemnified by the defendant. The agreement is exhibited as MC 8. That the said claimants’ Country Director, Bhisham Kanda formerly handed over the keys to the premises at Amina House on 27th May 2005 and he signed for UNIPRO, the defendants. A copy of the handover note is exhibited and marked MC 9. The plaintiff concludes that it is therefore clear from the foregoing that the claimant and the defendant are one and the same people and the present application is intended to defeat and frustrate the plaintiff’s claim herein. That alternatively the claimants held themselves out as the defendants and can not deny liability at the moment since it has been shown that they continuously acted as UNIPRO in their dealings with the plaintiff and they should be treated as such.

There is an affidavit in reply where the claimant denies that MGM 2, MGM 3 and MGM 4 are dubious in nature. That the claimant only asked the documents to be faxed because of the urgency of the matter. The originals of the faxed documents have been exhibited and marked MGM1. Further, the claimants admit to have settled the defendants’ debt upon instructions from the defendants who would reimburse the claimants’ head office and that is why they used their own cheque.

During hearing both counsel adopted their affidavits and skeletal arguments. However counsel for the claimant emphasized that, the fact that the claimants paid debts on behalf of the defendants and that the claimants’ Country Director was allowed to sign documents for the defendants can not be proof that the two are one and the same.

Counsel for the plaintiff also emphasized that the documents exhibited are not genuine. That in any normal transaction between two companies, and even of the nature the claimant and the defendant allegedly took out, it is reasonably expected that each party to the transaction should have originals of the transaction. As of the date of the seizure of the vehicle and even as of the date of hearing of this application the claimant never had originals of the transaction.

Having heard the summons, I now have to exercise the powers of the court under Order 17 rule 5 of the Rules of the Supreme Court. But before I do that, let me mention that there are two types of interpleaders, Sheriff’s Interpleaders and Stakeholder’s Interpleaders. The one before me is a Sheriff’s Interpleader. Order 17 rule 5(2)(a) provides that where the applicant is a sheriff, the court may summarily determine the question at issue between the claimants and make an order accordingly on such terms as may be just. I therefore have to summarily determine the question at issue in this application.

In dealing with an interpleader summarily, a master usually has to adjourn the summons for a special appointment at which viva voce evidence from the claimant and other witnesses is heard in the usual way. In P.B.J. Davis Manufacturing Co. Ltd. v. Fahn (Fahn claimant) [1967] 2 All ER 1274 at p. 1276 Lord Denning M.R. had this to say:

“On the hearing of the summons it is open to the master “summarily” to determine the question (see R.S.C. Ord. 17 r. 5(2)); but “summarily” there does not mean that he can determine it right away out of hand. It means only that he can determine it himself without directing an issue. (See Re Tarn [1893] 2 Ch. 280). The usual practice of the master when he “summarily” determines the question is to give a special appointment at which evidence can be taken orally and the witnesses can be cross-examined; and at which the relevant documents can be produced.”

In this case therefore I need to give that special appointment. I direct that it be within 14 days from the date hereof.

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

T.R. Ligowe