IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 3645 OF 2001
APEX CAR SALES JUDGMENT CREDITOR
ATTORNEY GENERAL (Controller of Stores-on behalf of
Ministry of Tourism) JUDGMENT DEBTOR
NATIONAL BANK OF MALAWI GARNISHEE
CORAM: THE HON. MR JUSTICE F.E. KAPANDA
Mr Kauka, of Counsel for the Judgment Creditor
Absent, Counsel for Judgment Debtor and Garnishee
Mr Rhodani, Court Clerk
Date of hearing: 19th September 2003
Date of ruling: 10th October 2003
On 5th June 2003 the learned Assistant Registrar discharged a Garnishee Order nisi that the Judgment Creditor had obtained in this matter. The Judgment Creditor is aggrieved by the decision of the said Assistant Registrar. Thus the appeal herein.
We must point out that this court will have to rehear the proceedings that were before the learned Assistant Registrar. This is the case since appeals to a Judge in Chambers, from the decision of the Registrar, are by way of a re-hearing: Order 58 of the Rules of the Supreme Court.
Fact of The Case
The facts of this case, which are relevant to the determination of this appeal, are simple and they are as follows:
On 6th February 2002 the judgment creditor (Apex Car Sales) obtained a default judgment against the judgment debtor (the Attorney General). Of the so many methods of enforcing judgment available to it, the judgment creditor chose to enforce the judgment by way of garnishee proceedings. Consequently, on 5th May 2003 the judgment creditor obtained a garnishee order nisi. The learned Deputy Registrar ordered that all debts due and accruing from the garnishee herein to the judgment debtor should be attached to answer the judgment that was entered against the judgment debtor on the said 6th day of February 2002.
The learned Deputy Registrar then set the 5th day of June 2003 as the date when the garnishee order nisi was to be made absolute. As it turned out the said garnishee order nisi was never made absolute. Instead, the learned Assistant Registrar discharged the garnishee order nisi that the judgment creditor had obtained on the said 5th day of May 2003.
The Assistant Registrars Order
The Assistant Registrar made the following order, which is the subject matter of this appeal:
On the strength of the High Court decision in National Bank of Malawi vs. S.Y. Banda t/a Victoria Distributors and Attorney General C.C. No. 325 of 1991 the garnishee order nisi herein is discharged as it concerns government.
The above quoted order did not go down well with the judgment creditor. Hence, on the same day the order was made the judgment creditor took out a Notice of Appeal. In it the judgment creditor set out the basis upon which it was appealing against the Order of the learned Assistant Registrar.
Grounds of Appeal
In the Notice of Appeal mentioned above the judgment creditor set out one ground of appeal. It was put thus:
The learned Assistant Registrar erred in law in holding that the correct position at law is that no Garnishee Proceedings shall issue against Government funds.
There was no cross appeal on the part of either the judgment debtor or the garnishee. Further, it must be noted that though both the judgment debtor and the garnishee were served with the Notice of Hearing they did not appear before us to present any argument in this appeal.
The Argument of Judgment Creditor
The garnishor, through learned Counsel, has essentially advanced one argument. It is that the learned Assistant Registrar was mistaken in discharging the Garnishee Order nisi. Mr Kauka has, to this end, cited several authorities to support his contention that the decision of the learned Assistant Registrar was based on an erroneous decision of the High Court in National Bank of Malawi vs. S.Y. Banda t/a Victoria Distributors and Attorney General Civil Cause No. 325 of 1991 [unreported]. We will comment upon this decision later when we are considering the issue that this court has been invited to determine. Counsel for the judgment creditor further submits that, as the law presently stands in Malawi, a successful litigant is not precluded from employing garnishee proceedings as a mode of enforcing a judgment obtained against Government. The judgment creditor opines that since, in terms of Section 8 of the Civil Procedure (Suits by or Against Government or Public Officers) Act, a successful litigant can execute against Government then there is nothing to stop such litigant from enforcing a judgment against Government through garnishee proceedings.
Issue For Determination On This Appeal
The issue for determination in the appeal before us is whether or not, in Malawi, a successful litigant, in seeking to recover a judgment debt due from Government, is precluded from employing Garnishee Proceedings as a mode of enforcing a judgment entered against Government.
We wish to point out that as we are determining this issue the court will also answer some other questions that it thinks will assist it in meaningfully determining the issue arising for determination in this appeal.
Consideration of the Issue
The decision relied upon by the learned Assistant Registrar
We noted that the learned Assistant Registrar discharged the garnishee order on the strength of this courts decision in National Bank of Malawi vs. S.Y. Banda t/a Victoria Distributors and Attorney General C.C. No. 325 of 1991 [High Court decision of 29th February 1995] [unreported]. We also had the benefit of reading, and reflecting on, our earlier opinion in the National Bank of Malawi case cited above and wish to make a few observations.
Firstly, the court rightly concluded that, in terms of Order 49 of the Rules of the Supreme Court, no order of attachment of debts could be made on money due or accruing to the Crown. The immunity of the Crown is actually provided for in the Crown Proceedings Act,1947. We must add though that the Crown being referred to is the one obtaining in England and not Malawi.
Secondly, using this authority, namely Order 49 of the Rules of the Supreme Court, the court found and concluded that in Malawi no garnishee order can be made in respect of Government funds. As we will shortly demonstrate, we will have to depart from our earlier position where we erroneously imported the law obtaining in England into Malawi.
Finally, we observe that this court had earlier on concluded that since, pursuant to the provisions of Section 10 of the Civil Procedure (Suits by or Against The Government or Public Officers) Act, injunction or specific performance does not lie against Government then no garnishee order can be made in respect of Government funds.
We wish to observe that whilst it may be true that, in terms of the said Section 10 of the Civil Procedure (suits by or against the Government of Public Officers) Act, no injunction or specific orders can issue against Government it was unsound for us to extend this provision to include garnishee orders. We will shortly explain why we are now of the view that it was wrong of us to extend the meaning and effect of this provision. For now it will suffice to say that it is obvious that in our earlier decision, in the National Bank of Malawi case, we did not have recourse to the provisions of Section 8 of the said Civil Procedure (suits by or against Government or Public Officers) Act. As a matter of fact, if we had been referred to the stipulation in the said Section 8 our opinion would have been different. Having read this provision we are now of the view, and we find it as a fact, that in Malawi it is possible to levy execution on Government property. The only limitation being that the execution cannot be done unless a decree of the court remains unsatisfied for a period of three months. Thus a successful litigant has a wide choice as regards how to enforce a judgment obtained against Government. A garnishee proceeding is one of those modes of enforcing a money judgment against a judgment debtor. Following from this we erred in concluding that a garnishee order cannot be made in respect of Government funds. The correct position is that in Malawi it is possible to attach a debt due or accruing to the Malawi Government.
Is a garnishee order the same as an order of injunction specific performance?
As we understand it, a garnishee order is not the same as an injunction or an order of specific performance. It is trite knowledge that a garnishee is a mode of enforcing a money judgment. Injunctions or specific performance orders are not methods of enforcing money judgments. Thus, contrary to our earlier decision in the National Bank of Malawi case, garnishee proceedings are not caught by the provisions of the said Section 10 of the Civil Procedure (suits by or against Government or Public Officers) Act. The said Section 10 is very clear in what it provides for. It does not say that garnishee orders will not be issued in respect of debts due or accruing to Government or Government department.
From what we have observed above, this court finds and concludes that there is no law that precludes a successful litigant from employing garnishee proceedings in order to enforce a judgment debt due from government. Further, we can do no better than quote and adopt the following observations of Chimasula, J. in Tayamba General Dealers vs. Attorney General Civil Cause No. 1889 of 2002 (unreported):
[a] garnishee order is not an injunction or a specific performance order as generally understood in legal circles. Secondly, [the] Registrar should weigh pre-1994 constitutional order and compare it with post May 1994 constitutional framework. Can rule of law exist where Government want(s) to overprotect itself? If Government wants to participate in Commercial Banks facilities it must realise that garnishee orders fully attach to Commercial banks and there would be nothing improper in making a garnishee order against a Commercial Bank for its credit balance in favour of Government Department or agency account [Emphasis supplied by us]
As we understand it, there is no law in Malawi that would stop government to obtain a garnishee order if it wanted to enforce a judgment obtained against any other person. Yet in the National Bank of Malawi case this court conferred government an immunity from garnishee orders in respect of funds due or accruing to it. The immunity that we conferred on government is not clearly spelt out in the said Civil Procedure (suits by or against Government or Public Officers) Act. Indeed, it is against the rule of law if we were to allow that government should be able to obtain a garnishee order in respect of funds due or accruing to a person when it is impossible to do so against Government funds. This is more so where our legislature did not enact a law to shield government from the effects of a garnishee order. In the absence of law conferring immunity to government the court cannot justify its decision that has the effect of shielding government by not subjecting it to the same mode of enforcing judgment that it might employ against private persons.
Further, we wish to observe that the said Order 49 of the Rules of the Supreme Court, which is founded on the Crown Proceedings Act 1947 and proscribes the use of garnishee proceedings against the Crown, has no application to Malawi since the said Crown Proceedings Act is not part of our received law: Emma Sisya vs. The Attorney General Civil Cause No. 72 of 1992 (unreported). In the absence of a similar legislation in Malawi, prohibiting the issuing of garnishee order in respect of Government funds, we cannot deny litigants the opportunity to enforce money judgments against Government through garnishee proceedings. We trust that Government will take legislative measures to properly confer itself with immunity, like it is the case in England, from the effects of garnishee orders. Until that is done garnishee orders will have to be issued in respect of Government funds.
The long and short of it is that this appeal succeeds with costs.
Handed down in Chambers this 10th day of October 2003 at the Principal Registry, Blantyre.