Khumbu Properties Ltd v Hachim (Civil Cause 9 of 2007) [2007] MWHC 101 (4 October 2007)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO. 9 OF 2007 BETWEEN KHUMBU PROPERTIES LIMITED ………………………………… PLAINTIFF -AND- MR. HACHIM ......…………………………………………………… DEFENDANT - CORAM : T. R. Ligowe : Assistant Registrar Nkhutabasa : Counsel for the Plaintiff Nankhuni : Counsel for the Defendant RULING On 3rd January 2007 the plaintiff issued a warrant of distress for rent against the defendant for K1 350 000 being rentals in arrears, K202 500 Legal fees and K270 000 Levy fees. The defendant now applies to set aside that warrant on the ground that it is irregular. The application is supported by an affidavit and supplementary affidavit sworn by counsel for the defendant and another affidavit sworn by Grace Kusani. There is also an affidavit in opposition sworn by Counsel for the plaintiff. Reading all the affidavits, some facts are not in dispute. The plaintiff is a landlord and the defendant a tenant following an agreement entered between them on 1st April 2005 over the house on Plot No. 9/42 in Lilongwe City. It is a yearly tenancy at the rate of US$ 500 payable six months in advance. It was brokered by S&C Estate Agents and Grace Kusani Mtemenyama was the landlord’s witness. The affidavits in support show that the defendant made the initial payment of MK 327 000 to S&C Estate Agents. Thereafter payments were made to Grace Kusani. Paragraph 5 of the affidavit in support states that S&C Estate Agents instructed the defendant in the presence of the said Grace Kusani Mtemanyama to be making payments directly to her. Pararaph 4 of the supplementary affidavit deposes that the defendant dealt with Grace Kusani after the Esate Agent handed over the defendant to her. And in paragraph 4 of her affidavit Grace Kusani states that after the defendant had paid the first rentals to S&C Estate Agents, it was agreed with the Agents and the plaintiff that rentals should be paid through her and later through Racane Associates. On or about 12 th October 2005 the defendant paid K 368 370 to Grace Kusani and on or about 26th May 2006 K322 700. He further paid K 100 000 to Racane Associates on or about 15th September 2006 and K 225 000 on or about 20th September 2006. Counsel for the defendant argues that S&C Estate Agents and Grace Kusani had apparent authority to receive the rentals on behalf of the plaintiff and the defendant having paid as stated above, there were no outstanding rentals and the writ of distress for rent was therefore wrongfully issued. In his affidavit in opposition counsel for the plaintiff argues that the tenancy agreement was between Khumbu Traders Ltd as the Landlord and Hachiem Diab as the tenant and everyone else were third parties and not privy to it. Per the agreement the defendant was bound to pay to the landlord Khumbu Traders and not anyone else. Grace Kusani Mtemanyama was merely a witness and she has never at any material time acted on behalf of the plaintiff nor has she been in the employ of the plaintiff whatsoever and she has never been authorised to act in any way on behalf of or under the instructions of the plaintiff. Having brokered the agreement it is apparent that the brokers unless otherwise stated, did not have the capacity or the authority to instruct the tenant to be paying directly to Grace Kusani when the landlord is a limited company with its own legal personality. Being a broker and a witness can not amount to having apparent authority to acct on behalf of a limited company without substantiating facts. That before the warrant of distress was issued the plaintiff sent reminders for rentals due but the defendant did not respond or come with proofs of payment. The issue before the court therefore is, whether in the circumstances, the warrant of distress for rent is irregular. Before that perhaps I need to consider an issue of practice on how to go about with the present matter with the courts. What is the proper action to take in case of an unlawful warrant of distress for rent? That will determine how I should deal with the application before me. On this point, Counsel for the plaintiff lamented in his submission saying, there is little jurisprudence in this country on issues of distress for rent. His opinion was that oral evidence was proper to deal with the issues being raised in this case as the facts are contentious. He was not sure therefore, whether this matter can be determined on affidavit evidence. Let me begin by quoting Megarry’s Manual of The Law of Real Property, 6th Edition by David J. Hayton page 366. “The subject of distress is extremely intricate, and all that need be said here is that in essence it consists of the right of the landlord, exercisable without application to the court but ordinarily exercised by a court certified bailiff, to enforce payment by seizing and selling enough of any goods found on the premises” Reading this it is clear that distress for rent is not a court process although it is exercisable by a court certified bailiff. The law governing distress for rent in this country is the English Law of Distress Amendment Act 1888. There was an issue in Gurmair Garments Manufacturing (EPZ) Ltd in Liquidation and Crown Fashions Ltd v Ismail Properties Ltd, MSCA Civil Appeal No 29 of 2006 (unreported), as to whether the law is that Act or sections 21 and 5 of the Sheriff’s Act. The Court held: “After considering oral and written argument of counsel for the appellants and respondents our clear position is that the English Law of Distress Amendment Act 1888 is an Act of general application and that, in the absence of local statute governing distress for rent in Malawi, it applies in this country. We do not think that the Sheriffs Act was intended to regulate distress for rent in this country. We, therefore, agree with learned counsel for the appellants that where distress for rent is concerned, the relevant and applicable law is the 1888 English statute of Law of Distress Amendment Act.” Although the practice obtaining in this country is slightly different from the one in England, it remains that distress for rent is not an action brought before the courts. You will notice that notices and warrants of distress for rent are issued without being registered as a case. A warrant of distress and a notice of distress for rent are obtained from the Sheriff of Malawi who also is the Registrar of the High Court and Supreme Court of Appeal and actual distress is levied by the Sheriff or a person authorized by the Sheriff or a bailiff. Section 7 of the Law of Distress Amendment Act provides among others, for a remedy in case of distress contrary to the provisions of the Act. The last paragraph of the section provides: “If any person not holding a certificate under this section shall levy a distress contrary to the provisions of this Act, the person so levying, and any person who has authorised him so to levy, shall be deemed to have committed a trespass.” This is just one instance of illegal distress. An illegal distress is one which is wrongful at the very outset, that is to say, either where there was no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings. In such a case the distrainor is a trespasser ab initio. (See Attack v Bramwell (1863), 3B. & S. 520) There are so many instances of illegal distress but one other is what is being alleged to have happened in the present case, a distress when no rent is in arrear. The remedies for illegal distress are rescue, replevin or action for damages. (12 Halsbury’s Laws 3rd Edn Para. 295). I need not discuss the remedies for purposes of this ruling, suffice to say that in case a tenant is aggrieved by the distress the remedy is, apart from rescue, in the tenant taking action against the landlord or bailiff in court, with the possibility of an injunction where appropriate. Remember I said earlier on that distress for rent is not a court process. The aggrieved tenant therefore will start the process. Thus in the present case we can not talk of setting aside the warrant of distress for rent. The tenant should have brought an action for replevin or for damages and perhaps seek for an interim injunction if need be. The action then would have proceeded normally and give chance for discovery and oral evidence, counsel for the tenant lamented about. In fact we have a classic example in Malawi, Gurmair Garments Manufacturing (EPZ) Ltd in Liquidation and Crown Fashions Ltd v Ismail Properties Ltd, op cit. The first appellant in that case claimed for damages for trespass and for seizure and detention of certain goods in case of a distress they thought was illegal. I dismiss the present application with costs incurred this far to the landlord, respondent. The tenant can commence the action for trespass on the same file. Made in chambers this 5th day of October 2007 T. R. Ligowe ASSISTANT REGISTRAR 6