CIVIL CAUSE NO. 450 OF 1998
ELLEN KUPINGANI MWALE ………………………… 1ST PLAINTIFF
CECILIA TAMANDA KADZAMIRA …………………..DEFENDANT
RULINGCORAM: POTANI, REGISTRAR
By this application, the judgment creditor, Mbendera Chibambo and Associates, seeks an order of this court declaring as absolute, the garnishee order nisi obtained on January 9, 2003. That garnishee order nisi directed that any sums of money not exceeding K4,398,000.00 due from the garnishee, Malawi Revenue Authority, to the judgment debtor, the Estate of Late Dr. Kamuzu Banda, be attached to satisfy a judgment obtained by the judgment creditor against the said Estate on November 27, 2002.
It is trite law that for garnishee proceedings to succeed, there must
be ample proof that there are sums due to the judgment debtor from the
garnishee. Thus, there must be a debtor and creditor relationship
between the garnishee and the judgment debtor. It came out clearly
in the course of the hearing that as at the time the garnishee order nisi
was being made, the garnishee was indebted to the judgment
debtor in the sum of K2,703,300.00 being rentals payable to the judgment debtor. The order absolute the judgment creditor seeks can therefore be made only to the extent of that amount, if at all. The judgment creditor would have to resort to other avenues to recover the balance of the judgment debt.
It was contended by counsel for the judgment debtor that it would offend the judgment of November 27, 2002 if the judgment creditor were to be paid all the sums due to the judgment debtor from the garnishee since that judgment took cognizance of other judgment creditors who ought to benefit as well. It was further observed by counsel that the judgment specifically made provision for an initial payment of 33.33 percent of the sums due to each of the creditors and that the judgment creditor would therefore only be entitled to payment of the sum of K1,465,853.40.
On his part, counsel for the judgment creditor submitted that where there are several creditors laying a claim on an estate which is solvent, whichever creditor institutes garnishee proceedings first is entitled to be paid any sums that are found payable. A number of cases were cited in support of such a submission including the case of Pritchard v. Westinimster Bank Limited (1969) 1 All ER 359. With regard to the contention that the judgment creditor can only be entitled to payment of 33.3 percent of what is owing, counsel argued that that was conditional on the judgment debtor effecting payment within 30 days from November 27, 2002 when the judgment was made and as the judgment debtor never complied with that conditionality the benefit accruing to the judgment debtor from the judgment order fell off. Order 45 rule 10 of Rules of the Supreme Court was cited in support of this submission.
I have given the matter, especially the arguments by both parties, thoughtful
consideration. I have also had occasion to look at the decisions
in some of the cases cited and the provisions of Order 45 rule 10.
In my view, order 45 rule 10 is relevant and ought apply with full force
to the present case. It would be quite absurd to allow the judgment
debtor to rely on a judgment whose terms it has failed to honour.
Thus, by not making the payments ordered by the judgment of November 27,
2002, within the stipulated 30 days, the judgment debtor cannot seek the
protection of the same judgment. Furthermore, it is my finding
that the judgment creditor having not been paid within the 30 days, as
ordered, was perfectly entitled to take any steps, including the present
proceedings, inorder to recover the sums due from the judgment debtor.
As was stated by counsel for the judgment creditor, there is nothing to
stop the judgment creditor from reaping the fruits of its diligence by
instituting the garnishee proceedings upon the judgment debtor defaulting
in complying with the judgment of November 27, 2002. Perhaps, I should
state that had the judgment debtor complied with the judgment, I would
have come to a different conclusion on this application. I thus order
that the garnishee order nisi be made absolute to the extent of the total
sum of K2,703,300.00 due from the garnishee to the judgment debtor.
H S B Potani