Prime Insurance Company LTD v Sheik Muhammed Maaz Nadwi (Civil Cause 1746 of 2000) [2011] MWHC 101 (20 May 2011)

IN THE HIGH COURT OF MALAWI 47& BLANTYRE REGISTRY k_/Q/L CIVIL CAUSE NO. 1746 OF 2000 208y C BETWEEN: PRIME INSURANCE COMPANY LIMITED PLAINTIFF SHEIK MUHAMMED MAAZ NADWI DEFENDANT STANDARD BANK LIMITED GARNISHEE Coram: M. A. Tembo, Deputy Registrar Misanjo, Counsel for the Plaintiff Thengolose, Counsel for the Garnishee ORDER This is this court’s order on the garnishee’s application to set aside the garnishee order absolute obtained herein by the plaintiff for the sum of K29, 320.53. That sum of money was believed to be held by the garnishee on behalf of the defendant. The application is supported by the affidavit of the garnishee which discloses that it has now transpired that the sum of money in issue herein was actually not held by the garnishee on behalf of the defendant but that the same was held by the garnishee on behalf of a different third party with a very similar but different name from that of the defendant. Consequently, the garnishee seeks that the order absolute herein that directed the garnishee to pay out the sum in issue to the plaintiff be set aside as it was made as a result of the mistaken identity of the account holder from which the money was paid out. The garnishee has submitted, among others that, where there is a mutual mistake on the part of the garnishee and judgment creditor this Court has discretion to set aside an order absolute. The garnishee cited the case of Moore v Peachy (1892) 66 L. T. 198. The plaintiff argues that the mistake herein was not mutual as it is only the garnishee that made a mistake. This court is of the view that both the garnishee and the plaintiff have mistakenly proceeded to have an order absolute on the money from a bank account of a third party to these proceedings instead of proceeding with the money from the defendant’s bank account. This Court considers therefore that there is a mutual mistake triggered by the garnishee’s failure to notice the difference in the account holder’s names of the bank accounts involved on this matter. Consequently, it would not be fair to maintain the garnishee order absolute herein. The garnishee order absolute is set aside. The plaintiff sought that the garnishee bear the costs on setting aside given that it is the garnishee which failed to notice that it was proceeding to release the money from a third party’s bank account and not that of the defendant. This Court agrees that that should be the case notwithstanding that ordinarily it is the defendant that is supposed to bear the costs of garnishee proceedings in line with Order 49 r. 10 Rules of the Supreme Court. Costs on making the garnishee order absolute and setting it aside shall accordingly be borne by the garnishee. The plaintiff shall refund the sum of money received under the garnishee order absolute herein to the garnishee within the next seven days. Made in Chambers at Blantyre this )@Way 2011. Deputy Registrar