A.K.I Investments v Malawi Housing Corporation (Civil Cause 588 of 2001) [2004] MWHC 101 (29 July 2004)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 588 OF 2001 BETWEEN: A K.l INVESTMENTS AND MALAWI HOUSING CORPORATION........................ DEFENDANT CORAM: TEMBO, ASSISTANT REGISTRAR Kauka, Counsel for the Plaintiff Nkuna, Counsel for the Defendant ORDER this court's order on This is set aside execution of part of the judgment herein on the ground that the said execution was irregular. the defendant's application to By the consent of both parties herein a consent judgment had been entered for K12 million interest on sums due from the defendant to the plaintiff and for K500,000.00 collection costs. The consent judgment is dated 11" September, 2003 and the judgment sum was to be paid in 24 equal monthly instalments of K500,000.00 each beginning August, 2003. The defendant had defaulted in payment of the November instalment as at the date of hearing of the instant summons. As a result of that default the plaintiff issued a certificate of non-compliance of the defendant with the terms of the consent order and indicated that the plaintiff was therefore at liberty to execute against the defendant for the whole sum due on the A writ of fieri facias consequently issued consent judgment of K10million. The defendant for the whole sum of K10 million on 13" January, 2004. contends that the said execution was irregular in that the plaintiff was only entitled to executed for the sum in default of K500,000.00 and not for the whole sum of the judgment debt. The defendant was condemned to pay Sheriff fees on the whole sum of the judgment debt which come to K2,257,020.00 subject to reimbursement from plaintiff if the execution was irregular. And the defendant argues that since the execution was irregular then on its being set aside the plaintiff should bear the Sheriff Fees in excess of the K500,000.00 with regard to which the plaintiff was entitled to levy execution. The defendant argued that there was execution herein because the bailiff intimated to the defendant that the defendant’s vehicles had been seized and because the bailiff also locked up the premises where the defendant had packed the vehicles with respect to which the bailiff had intimated the seizure The plaintiff contends on the contrary that, firstly, there was no execution herein and so there is no execution to set aside and no liability for Sheriff Fees. Counsel for the plaintiff was of the view that what the officer of the Sheriff did herein did not constitute seizure of the defendant’s goods to amount to an execution warranting payment of Sheriff fees. He cited Vol. 16 Halsbury's laws of England 3 Edition at Par. 84 on P. 55 on definition of a valid seizure. He went on to explain that what the Sheriff officer did herein the a trespass to would not without the And that a trespass to defendant’s vehicle so that it constitute a seizure. the vehicles was necessary for there to be a seizure. Counsel for the He submitted Plaintiff cited Street on Torts on the definition of a seizure. that where there is indirect interference with the goods as has been the case herein there is no trespass and cited Covell v. Laming 1801 1 Camp 497. And further that to lock up the room where the plaintiff's goods are as was the case herein is not a trespass to such goods and cited Hartley v. Moxham [1842] 1 QB 701. This court has thought long and hard about this submission and that of the defendant countering this submission. authority amount to court’s This court chooses to agree with the defence that there was a valid seizure herein. This court is of the view that par. 84 of Vol. 16 of the 3 Edition of Halsburys Laws of England is very clear that an entry upon the premises on which the goods are situate together with an intimation of an intention to seize the goods will amount to a valid seizure see Watson v. Murray and Company [1955] 2. QB. 1 the Sheriffs officer went to is a question of fact whether a seizure The most important aspect is that it has been effected in any case. See Bird v. Bass (1843) 6 Man & G. 143. This court has considered the facts obtaining in the present case namely; the defendant's premises under the that authority of a writ of fieri facia’s, informed the agents of the defendant that were seized and would be its parking lot the defendant’s vehicles in removed if the defendant did not satisfy the execution sum by a fixed time of Itis that day and then locked up the defendant’s vehicles in the parking lot. officer entered the clear, defendant's premises and intimated an intention to seize vehicles of the Sheriff court, view that this the the of in defendant. There is no doubt herein that a seizure had been made and the Having same had registered on the minds of the agents of the defendant. found that there was a valid seizure this court is of the view that there was an execution of the writ of fieri facia's to be considered herein as to whether As stated earlier on the it was regular or defendant asserted that the execution was an irregular one in that it was for the full judgment sum and yet the defendant had only defaulted on a single instalment. in the circumstances. not The plaintiff has a contrary view on the defendant’s assertion. The plaintiff's view is that the execution was regular. The plaintiff strongly contended that where, as is the case herein, there’'s an order for payment of debt by instalments then on default in payment of an instalment the whole sum due And that then the plaintiff is entitled to execute for the becomes payable. Counsel for the whole sum due as was the case in the present case. plaintiff cited Section 7 Sheriff's Act in support of that contention. As a sub argument the plaintiff also submitted that under principles of contract the breach of the contract to pay debt by instalments herein entitled the plaintiff to treat the said contract as repudiated and to accept the repudiation. And consequently entitling the plaintiff to levy execution for the full judgment. The plaintiff stated this on the ground that the consent order herein is no less a contract between the parties despite the fact that it later became a consent order made under the hand of the court. it prudent to note that the consent order herein only This court finds provided for the payment of the debt by 24 equal monthly instaiments. It did not provide for what would happen in the event of default in payment of any instalment. As already stated earlier on the defendant asserted that the plaintiff was only entitled to execute for the K500,000.00 the sum in default and nothing And consequently that the plaintiff should bear sheriff fees for the else. This court notes that the execution in excess of the said K500,000.00. argument raised by either side is very persuasive. When one considers the sub argument raised by the plaintiff one may wonder indeed as to why the defendant can default and not suffer execution for the full sum. The result it appears, in that case, to be that the defendant benefits from the contract is just one side of the sub although it breaches the same. argument. One may turn around and note that as at the date of the default in actual the plaintiff was only entitled to the single instalment which is The defendant at that point has not breached the contract in default. relation to the rest of the instalments and effectively the plaintiff is not entitled as yet to the instalments that are not yet due. But that This court is therefore of the view that the sub-argument is not very useful in resolving the issue at hand and that Section 7 Sheriff's Act is the major is clear that where a court determining feature. The section in sub section 1 has made an order for payment of a judgment by instalments no warrant of execution shall be issued until after default in payment of some instaiment according to the order. This court views the subsection as one simply stating the position effectively that execution of judgment is automatically stayed by an order for payment of such judgment by instalments. Compare Section 61 Execution Act of 1844 in England. And the stay lapses if there is This sub section does not indicate default in payment of some instalment. whether on such default the plaintiff can execute only for the instaiment in default or for the full judgment debt. The view of this court is that to discover for what part of the judgment the plaintiff can execute in cases of default on some instalment one has then to consider Section 7 (2) Sheriffs Act. (2) Sheriffs Act this court feels that what determines the manner of execution on such defaults is the order of the court as made either at the time of the original order for payment of debt by instalments or as made at This court has already pointed out that the original consent order makes no provision for execution in the event of default. The plaintiff submitted that in such a case execution ought to follow for full judgment debt in the event of default on payment of some instaiment. Clearly this is not the correct position in view of Section 7 In the present case there was no provision for execution on (2) Sheriff Act. default in payment of some instalment either in the original order for payment by instalments or at What should be the correct position in the circumstances. Looking at Section 7 a subsequent time. a subsequent time. And the difficulties. This court is of the view that the defence is right that in the absence of any agreement on provision for execution on default then execution should only Why should this be so? When agreeing to be for the sum in default. creditor appreciates the debtors’ payment of debt by instalments the his financial financial debtor undertakes within Now it would constraints, to pay a certain sum within every fixed period. not, in this court’s view, be fair to the debtor to make him strive to make instalment payments and risk execution for the whole sum at the same time in the event of some default. Compare parallel reasoning in Montgomery and Company v. De Bulmes [1898] 2 QB 420. This appears to be the correct position more so where, as in the present case, the plaintiff is only entitled to execute only for the instalment in default. If the parties intended that execution for whole judgment ought to follow on default in payment of some instalment the consent order should have said so clearly, otherwise such execution can not follow herein on a single default. is that the The end result plaintiff irregularly executed for the whole judgment debt herein. The plaintiff was only entitled to execute for the sum of K500,000.00 that was in default. Consequently, the plaintiff shall bear and reimburse the defendant Sheriff fees for the execution herein in excess of the K500,000.00. The reimbursement shall be effected herein within 21 days of this order. The actual sum shall be worked by the sheriff officer involved herein within the next 7 days of this order. And for purposes of avoidance of doubt the position as stated herein shall apply with regard to any default on instalments viz that execution can only issue with regard to the instalment in default. Costs are for the defendant. N Made in Chambers at Blantyre this ~ July, 2004. ASSISTANT REGISTRAR