The Argument(s) by the Plaintiff
As I see it, the basic argument advanced by Mr Nkhono of Counsel is that the sheriff
is not entitled to the fees. He opines that that since the right of the sheriff to fees are closely linked up to the party who issued
execution then the Sheriff can not get fees where the judgment to be executed is found to be irregular. In support of this argument,
the Plaintiff has called in aid the English case of Mortimore vs Cragg Ex parte Sherrif of Surrey.
The Plaintiff, therefore, urges this Court to follow the English decision quoted
above and find that he is not liable to pay the sheriff’s fees and expenses. In point of fact, the Plaintiff wants this Court
to reverse the order of the learned Assistant Registrar.
It must be observed that the Plaintiff either deliberately, or by mistake, seems
to be confusing what the Assistant Registrar ordered. The record is clear that the order of the Assistant Registrar does not mention
anywhere that the Sheriff of Malawi should be paid, inter alia, poundage. Consequently, any argument about poundage is misplaced.
So too the Mortimore case is of no relevance to the present matter. In the instant case the issue is whether sheriff’s fees and expenses are payable
notwithstanding the judgment having been irregular.
As I understand it, poundage is a commission that is payable to a Sheriff after money
is actually recovered. Indeed, as rightly put in Mortimore vs Cragg, the sheriff would not receive poundage where seizure was wrongful or if it is withdrawn by direction of law. As a matter of law if
the warrant of execution is vacated or set aside before the execution is completed the sheriff is not entitled to poundage. However,
as shall be seen shortly, whether he gets his statutory fees and expenses is governed by a different law altogether.
Questions for Determination
The appeal to this Court is from the decision of the Assistant Registrar. It is,
as a matter of trite law, a rehearing of the matter that was before the said Assistant Registrar. Consequently, this Court must determine
whether the sheriff fees and expenses are payable herein albeit that the judgment was irregular. Further, the Court must decide who
pays the said fees and expenses if they are payable at all.
Consideration of the issues
Entitlement to fees
It is settled law that before any prescribed fees is payable a formal seizure must
have been made under a warrant of execution. Further, it is my understanding of the law that whether or not a seizure has been made is a question of fact.
There is no dispute that there was seizure of the Defendants’ property. Actually,
there is evidence on record that the Defendant’s motor vehicle had been seized in execution on 10th July 2003. It is, therefore, found as a fact that there was in point of fact seizure that could entitle the sheriff to prescribed
However, the above finding does not dispose of the matter herein. The Court must
still determine whether the Sheriff herein should get his fees in view of the fact that the judgment was set aside on grounds of
Who pays fees when execution is stopped because of irregularity of judgment?
As I understand it, the law is that the person at whose instance the Sheriff proceded
to levy execution must be responsible for payment of sheriff fees where judgment is found to be irregular. The Plaintiff can not run away from liability by attempting to argue that since the judgment is irregular then sheriff fees are not
payable. Indeed, the Sheriff did all that he was required or permitted to do to earn his fees. If he had not been requested by the
Plaintiff to levy execution on the Defendant the Sheriff would not have earned the fees. The fact that the judgment was irregular
should not, and can not, disentitle the Sheriff the statutory fees that he earned. As a matter of fact, the Plaintiff is the one
who caused this irregular judgment to be issued. Further, the Plaintiff did not only obtain an irregular judgment and stop there.
He proceeded to request the Sheriff to levy execution. Surely, the Plaintiff should pay for his folly. Thus, the Assistant Registrar
did not err in ordering that the Plaintiff should pay the statutory fees the Sheriff was entitled to. Accordingly, the order of the
Assistant Registrar on sheriff fees can not be reversed. It is so ordered that the Sheriff is actually entitled to be paid his fees
on the amount which would have been received if the execution had not been stopped due to the irregularity in the way the judgment
There is no disputing of the fact that the Sheriff incurred expenses at the time
he went to levy execution on the Defendant. These must be paid by the Plaintiff as well for it is him who made the Sheriff incur
these expenses in the process of executing an irregular judgment.
As stated above, the law is that if execution is stopped, due to an irregularity
in the way judgment was obtained, the Sheriff is entitled to his fees as against the person issuing the execution. Again, the Assistant
Registrar’s order as regards payment sheriff expenses by the Plaintiff can not be faulted.
By reason of the findings and observations made above this Court refuses to reverse
the order of the learned Assistant Registrar. The Court finds and concludes that the sheriff fees and expenses are still payable
albeit that the execution proceeded on an irregular judgment. Further, the Plaintiff is the one to pay the said sheriff fees and
The long and short of it is that this appeal is dismissed in its entirety.
Made in Chambers this 18th day of August 2004 at the Principal Registry, Blantyre.