Marko, Supreme Labour Contractors and Associate and Kaira v Candlex Limited (Personal Injury Cause 115 of 2014) [2016] MWHC 734 (19 May 2016)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY PERSONAL INJURIES CAUSE N0.115 OF 2014 BETWEEN: NEVER MARKO ........................................................................................... JUDGMENT CREDITOR AND SUPREME LABOUR CONTRACTORS AND ASSOCIATES ................................. JUDGMENT DEBTOR OR LOT GALSON KAIRA ... ............................................................................... JUDGMENT DEBTOR CANDLEX LIMITED ................................................................................................. GARNISHEE Coram: H/H Jean Rosemary Kayira Assistant Registrar Counsel Kayikani Chakuwawa of Counsel for the Plaintiff/Judgment Creditor Counsel Isabel Mndolo of Counsel for the Defendant/Judgment Debtor Mr. Alexander Tepeka Court Clerk and Official Interpreter RULING - INTRODUCTION The Judgment Creditor in the present matter obtained a garnishee nisi on 3rd November 2015. The said order was in relation to efforts to recover K3, OOO, 000.00 which were damages awarded to the Plaintiff and interest accrued thereon. The Plaintiff was awarded this sum on 3rd February 201 5. On 16th February 2015, the Defendant through their Counsel obtained a stay to execute the default judgment dated 121h August 2014. The stay was granted pending the hearing and determination of summons to set aside the default judgment to be filed within 14 days from the date of its being issued. The said summons was never filed and the next - application was for garnishee nis1. This was granted by the Court and it was returnable on 24th November 2015. The record shows that at the time the said garnishee nisi was served by Mr. Robert Matope on 5th November 2015 on the Defendant at his workplace, he accepted service but refused to sign to show that he had acknowledged service. Thereafter, the garnishee through its Human Resources Manager was informed the nature of the document but the said Human Resources Manager threw the order down in the presence of Mr. Robert Matope. All this information has been deponed in the Affidavit of Service from the said Mr. Robert Matope Process Server at the Plaintiff Counsel's law firm. On 24th November 2015, the Plaintiff through Counsel Kalanda submitted to this Court that the matter was coming for the garnishee to show cause why the garnishee nisi should not be made absolute against them. It was his submission that Candlex Limited was served with the order of garnishee nisi as per the Affidavit of service of Matope and he further submitted thatthere were return of service for the other garnishees namely: CDH, MSB, Nedbank, Candlex Limited and FMB. Counsel Kalanda submitted that despite such services Candlex Limited never served on them an Affidavit in opposition as did other garnishees. In fact they never attended Court on the 24th of November 2015 as was required in the order of garnishee nisi to show cause why the order of garnishee nisi should not be made absolute against them. He then prayed that this Court makes the order absolute against CDH, MSB, Nedbank, Candlex Limited and FMB under Order 49 rule 4 of the Rules of the Supreme Court. This Court granted the prayer and made a garnishee absolute order against CDH, MSB, Nedbank, Candlex Limited and FMB. I must put it on record that it was noted that Nedbank filed their Affidavit in opposition to garnishee order on 23rd November 2015 which Affidavit had not been put on the record by the Civil Registry as of 24th November 2015. I therefore bear this in mind since this is a registry filing problem and not that of the clients. Thereafter on 271h November 2015, Candlex Limited one of the Garnishees obtained a stay of execution of the garnishee absolute of 24th November 2015 pending the determination of an application to have it set aside. In her Affidavit Counsel Mndolo depones that the garnishee was served with a garnishee absolute but does not owe the Judgment Debtor anything . - - It is the submission of Counsel Mndolo application to have the garnishee absolute set aside having conceded that a garnishee order nisi was served on the Human Resources Manager for Candlex Limited who received - - - ----r--h-e-s-aicl-erder-:-S-h-e-however--;st1-bmits-th-at-th·e-one-who-was-eff ecti ng--service-did-not-properly-e-xpi-ain-to-M· . Kanyandula as to the nature of the order and why it was being served on the Garnishee despite not being a party to the proceedings. As such Mr. Kanyandula refused to accept service of the order. The said Garnishee never sought a legal advice as to the effect of the order and also what they were expected or supposed to do. Since no copy of the garnishee order nisi was left at Candlex Limited, the Garnishee did not follow up on the order and therefore did not file an Affidavit in opposition or in reply which resulted into the order absolute to be entered as there was no explanation to show cause why the order should not be made absolute. That the Garnishee entered into a contract with the judgment debtor under which the latter provides it with casual laborers. In turn, the judgment debtor gets 10% of the cost of the laborers supplied at any given period. The - rest of the money caters for the -salary of the laborers who are paid on a fortnight basis similar to the judgment debtor. Under Order 49 of the Rules of the Supreme Court salary not yet payable does not constitute as attachable debt. Counsel Mndolo then asked this Court to consider the laborers in the event that the money has been attached by the order of this Court. Counsel Mndolo further submitted that Under Practice Note Number 49/4/5 of the Rules of the Supreme Court provides that. .. However there is jurisdiction to set aside such an order obtained in such circumstances as per Obly v Oil/egun1. The Plaintiff alleges in the skeleton arguments under paragraphs 4 to 10 that. .. However, it is the Garnishees submission that the burden is on the judgment creditor to prove to this Court that indeed the debt that led to Garnishee Candlex Limited does exist. Further one would have thought that these issues were to be raised in the Affidavit because they are factual in nature. In conclusion, Counsel Mndolo submitted that as there was no debt attachable as of the date of service it would only be in the interest of justice that the Garnishee order absolute that was made absolute and served on the Garnishee be set aside. Counsel Mndolo submits that at the time the garnishee order nisi was being served on the Garnishee on 5th November 2015, there was no money that had accrued and was due for payment to the judgment debtor. Accordingly there was no money the Garnishee could have attached to satisfy the judgment herein. That notwithstanding, the money that the judgment debtor gets from the Garnishee under the contract they entered into does not qualify to be attached to satisfy the judgment debt because the said money is subject to supply of laborers and the laborers do not work and therefore not earn a salary hence the judgment debtor cannot be paid. She finally prayed that this Court sets aside the garnishee order absolute on the ground that at the time the Garnishee order nisi was served on the Garnishee there was no money due and owing to the judgment debtor which could have been attached to satisfy the judgment herein. The Plaintiff through Counsel Chakuwawa filed an Affidavit in opposition of the application to set aside the garnishee order absolute which he adopted in their entirety. In response to the application he concurred with Counsel Mndolo that this Court has the jurisdiction to set aside the garnishee absolute order. He extended that the same jurisdiction is exercised upon proving exceptional circumstances because a garnishee order absolute is like a summary judgment as per the case of Fattani Offset Printers vs Corporate Colours. The second issue was whether the garnishee has shown exceptional circumstances. On this one, he noted that there is an issue of service of the garnishee order nisi and it is his submission that the said order was properly served and that there is an Affidavit of service deponed by Mr. Robert Matope from his law firm a process server who effected the service. It is clear that the process server actually went to garnishee's registered office where he met the receptionist. After explaining to her she referred him to another office. It is also clear that he explained to the gentleman whom he found in the second office where the order was served. Counsel Chakuwawa refers to the contents of the Affidavit which are to the effect that the effect of the document being • - 1[1914] LRR63 served was-explained to the gentleman. Therefore this document in his view was properly served on the Garnishee. Secondly, Counsel Chakuwawa submits that it is not always that the Court refuses to make an order absolute merely because there is a dispute. However it is only upon satisfactory dispute when the Court can refuse to make an order absolute. The explanation given by the Garnishee herein does not amount to satisfactory explanation because their dispute is that there is no money accruing or due to the judgment debtor and that the money herein does not qualify as an attachable debt. It has been specifically stated that the judgment debtor has a contract with the Garnishee. As the Court may notice, paragraphs 7,8,9,9.1 and 9.2 of the Affidavit in support the Garnishee argues based on the terms of the said contract. It shows that the said contract is more illuminating if these terms were to be given any weight. Surprisingly, such a contract has not been exhibited in Court. No account statements have been exhibited by the Garnishee to support their allegation that no money was owed. The disputes are not satisfactory since they are merely allegations without any support. Since the garnishee order nisi was served on the Garnishee to give them a chance to show cause why the same should not be made absolute, it is Counsel Chakuwawa's submission that he does not think that that burden can be achieved by mere assertions unless if they disputed the contract. In short following the case of Crown Building the factual issues which were to be in the Affidavit there were arguments derived from the Affidavit in support of an application. Lastly, Counsel Chakuwawa referred this Court to Practice Note 49/4/15 of the Rules of the Supreme Court where he said it is clear that where a Garnishee ..... He therefore submitted that Candlex Limited has been there for a long time and prayed that their application to have the garnishee order absolute set aside should be dismissed with costs. The reason is that it has not been explained in their Affidavit why they did not seek legal advice when they got the Garnishee order nisi as they have done after receiving the Garnishee order absolute. In her final submission, Counsel Mndolo said that the issue of service of the Garnishee order nisi is not in dispute. However, the jurisdiction of the Court extends to cases where the order remained inert which is what happened in this particular case. The case of O'Brian and Killeen2 held that the Court can set aside a Garnishee absolute which occurred for the garnishee's failure to file a reply to the order nisi. It is Counsel Mndolo's submission that in the Fattani's case was made by the Deputy Registrar and it is not binding on this Court. Secondly, the Deputy Registrar relied on Order 49 rule 5 of the Rules of the Supreme Court which deals with disputes of liability by Garnishee which is outside the present hearing of a summons to set aside the Garnishee order absolute. In particular that rule provides that ..... It was Counsel Mndolo's submission that this is outside the present application and the order has not set down the circumstances under which the Court can set aside the order absolute. She therefore submitted that the Fattani case is not applicable in this case and is not binding on this Court. On the issue of liability, it is Counsel Mndolo's submission that as of the date of service which is 5th November 2015 which date was when the judgment debtor filed the Garnishee order Nisi, there was no debt accrued to the judgment creditor. The Garnishee had not yet received the list of names from the judgment debtor at the time of the application for a Garnishee order Nisi. The payment to the judgment debtor is done fortnightly and 2[1914] 1 lr. R. 63 - - it depends on-th-e number of labourers provide-d and how m-any worked. As such the Garnishee would require the judgment debtor to provide them with a list of the said labourers. As of the previous day, Counsel Mndolo had not received a list of such labourers so that she could file the same with the Court. It is the list of casual labourers which forms the basis for payment. As such, to garnishee the said money would deny all these people their salaries. Hence her submission is that whatever is payable to Kayira is does not qualify as attachable since it is salary to the labourers. Kayira only gets 10% of the wages for the casual labourers. Finally the judgment debtor if he disputes that there is debt accruing from the Garnishee to the judgment debtor, then the burden is on it to prove. The judgment creditor applied to this Court asserting that there is a debt accruing to the judgment debtor by the Garnishee. They believe that the judgment creditor did not just come to this Court to fish. It ought to have had facts on which it applied this order. If the facts that they have are the ones which helped them in REASONED ANALYSIS OF THE COURT This is an application to have the Garnishee order absolute which this Court issued against Candlex Limited set aside on the ground that they did not owe any money to the Judgment Debtor at the time the order was served on them. I have had the opportunity to listen to the oral submissions of both Counsel and to read the skeleton arguments filed by the Judgment Creditor's Counsel. I have also read through the Affidavits both in support and opposition of the present application. Initially the impression created by the Garnishee was that service was not properly done by the Judgment Creditor. However, a closer look at the final submissions of Counsel Mndolo concedes to the fact that service was properly effected on Mr. Kanyandula Human Resources Manager at Candlex Limited. Therefore I find it as a fact and settled that service was effected properly on the Garnishee Candlex Limited through its Human Resources Manager Mr. Kanyandula. However, the said officer refused to sign acknowledging service for reasons best known to himself. The second issue related to reasons for failing to file an Affidavit in reply or for non-appearance on the return date of the Garnishee order nisi by the Garnishee. I attentively listened to the arguments of Counsel Mndolo. She is effectively arguing that the Human Resources Manager did not understand the effect of the order and this is why he refused to sign. Secondly, since there was no copy left at their office, they could not remember the date on which to show cause here in Court why that order should not be made absolute. Honestly, I find this contradictory because the order came to their knowledge by efforts of the Judgment Creditor. The minimum level of reasonableness and prudence would require them to treat the document from the Court with courtesy and seek advice from competent people as they have done this time when the same was made absolute. To therefore resent a picture of lack of knowledge and co~ of the order is not~D_Qc:UaLtbJ.o_JJJ_)' _ _ considered view. On this point I am inclined to accept the argument of Counsel Chakuwawa that they could have done what they have done now after being served with the first order. - At this point I find Practice Note 49/1/14 of the Rules of the Supreme Court as illuminating because it states that there must be money due to the judgment debtor. In the case for example of a building contract in the RIBA Form, where the builder is paid on the certificate of the architect, it is plain that money in the hands of the building owner cannot be attached until a certificate is issued and then only for the amount mentioned in - that certificate.3 Cn the presenf matter the-Gar-nishee-submits that the money which the Garnishee order absolute is attaching had not accrued to the Judgment debtor. As such it was not attachable. It is clear that where money has not accrued, the Garnishee cannot be issued with a legitimate expectation that money will be due or will accrue at some point. The effect of a Garnishee is that it attaches to the money which is due for payment to the judgment debtor. The Garnishee cannot be used to accelerate the payment of the money or that the said sum should accrue earlier than agreed. The Garnishee further does not dispute that it has a contract with the judgment debtor Mr. Lot Galson Kayira. However, the argument of the Garnishee is that money had not accrued at the time the Garnishee order Nisi was served on them. The Garnishee further argues that the money if it were to accrue is to pay for the manual or casual labourers engaged by the judgment debtor to supply services to the Garnishee and that the judgment debtor is only entitled to take 10% from the money paid. I bear in mind that a salary for another person is not attachable. It is however very essential that the terms and conditions of the contract between the Garnishee and the judgment debtor were supposed to be exhibited in order for this Court to appreciate its dynamics. Now that the same has not been brought to Court, it becomes absurd to base a decision on this argument. I hereby exercise my discretion and decline to set aside the Garnishee order absolute for the fact that the same was properly served on the Garnishee who did not want to appear to show cause why the same should not be made absolute. Costs are for the Plaintiff-Judgment Creditor PRONOUNCED IN CHAMBERS 0 " MAY 2016@4:30PM - 3Dun/op and Ranken Limited vs. Henda/1 Steel Structures Limited, Pitches Limited (Garnishee) [1957] 1 WLR 1102 6