Malawi
Sheriffs Act
Chapter 3:05
- Assented to on 21 December 1967
- Commenced on 1 February 1968
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short title
This Act may be cited as the Sheriffs Act.2. Interpretation
In this Act, unless the context otherwise requires—"court" means the High Court and a subordinate court;"judgment debtor" means a person liable under a judgment;"process" means a formal written authority issued by a court for the enforcement of a judgment and includes a warrant of possession and any warrant or order of arrest, commitment or imprisonment;"Sheriff" includes the Sheriff of Malawi appointed under section 3(1), any Deputy Sheriff, any Under-Sheriff and any Assistant Sheriff appointed under section 3(2);[22 of 1988]"subordinate court" bears the meaning ascribed to that term by section 2 of the Courts Act;[Cap. 3:02]"warrant" includes writ.[22 of 1988]Part II – Appointment of Sheriff and other officers
3. Appointment of Sheriff, Deputy Sheriff, Under-Sheriff and Assistant Sheriffs
4. Sheriff, etc., to be officers of court and they and persons acting under their directions or authority deemed employed in public service
5. Delegation of duties
Every duty of the Sheriff in connexion with any process may be performed by such police officer or other person as may be authorized in that behalf by the Sheriff and every such officer or person who is in possession of such process shall be presumed to be so authorized, and shall, for all purposes connected therewith, be an officer of the court by which such process was issued:Provided however that without the prior approval of the Commissioner of Police the Sheriff shall not authorize a police officer to perform any duty under a civil process involving the seizure and sale of any moveable property.Part III – Enforcement of judgments and orders against moveable property and committals, etc.
6. Execution of judgments or orders for sum of money
7. Execution of orders for payment by instalments
8. Execution to be superseded on payment
9. Power to suspend execution
If at any time upon an inquiry made on the application of the judgment debtor, wherein the onus of proof shall be upon him, it appears to the satisfaction of the court that the judgment debtor has made a full surrender and disclosure of his property in the prescribed manner, and that he is unable because of unavoidable misfortune to satisfy the judgment, and that he has not been guilty of any misconduct cognisable by the court, and that his property ought to be released from attachment, the court may, in its discretion, stay any warrant of execution issued in the proceedings for such time and upon such terms as the court thinks it, and so from time to time until it appears that the cause of inability has ceased.10. Execution of warrants of possession
For the purpose of executing a warrant to give possession of any premises, it shall not be necessary to remove any movable property from those premises.11. Property which may be seized
12. Custody of property seized
Movable property seized in execution under process of a court shall until the sale thereof—13. Disposal of bills of exchange, etc., seized
The sheriff shall hold any bills of exchange, promissory notes, bonds, specialties or other securities for money seized in execution under process of a court as security for the amount due by the judgment debtor for the benefit of the judgment creditor, and the judgment creditor may sue in the name of the judgment debtor, or in the name of any person in whose name the judgment debtor might have sued, for the recovery of the sum secured or made payable thereby, when the time of payment thereof arrives.14. Penalty for obstructing execution
If any person rescues or attempts to rescue any property seized in execution under process of a court or in any other way resists or obstructs the execution of any process for the enforcement of a judgment of a court, he shall be liable to a fine of £100, and the sheriff may take him into custody with or without warrant, and bring him before the court.15. Period to elapse before sale
16. Sales under execution to be published unless otherwise ordered
17. Delivery of movable property in possession of judgment debtor
Where the property sold shall consist of movable property in the possession of the judgment debtor, or to the immediate possession of which the judgment debtor is entitled, and of which actual seizure has been made, the property shall be delivered to the purchaser.18. Priority of warrants
When warrants against the property of any person have been issued from more than one court, the right to the proceeds of the property seized shall, subject to section 43 of the Bankruptcy Act, be determined according to the order of priority of the respective times of application to the courts for the issue of the warrants.[Cap. 11:01]19. Sales, the title obtained thereat and prohibition of certain purchases
20. Claims to property seized and interpleader by Sheriff
21. Claims for rent where property seized in execution
22. Surplus after sale, residue of property, etc.
Any surplus of a sale by a Sheriff under this Act, and any residue of property seized shall be returned to the judgment debtor.23. Property subject to lien
Where the property sold shall consist of movable property to which the judgment debtor is entitled, subject to a lien or right of any person to the immediate possession thereof, the delivery to the purchaser shall, as far as practicable, be made by the sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.24. Issue and execution of orders of committal
Part IV – Enforcement of judgments against private land not registered in the Lands Register
25. Application of Part
This Part shall apply to the enforcement of judgments against private land other than land registered in accordance with the Registered Land Act. Such enforcement shall be effected in the manner provided for in this part and not otherwise.[Cap. 58:01]26. Judgment creditor to file affidavit
27. Memorandum of approval by Registrar
Upon the filing of an affidavit under section 26, the Registrar shall examine the affidavit, and if the same be regular and contain all that is required by section 26 he shall endorse a memorandum of approval thereon.28. Registration in Deeds Registry Office
It shall then be lawful for the judgment creditor who has sworn and filed such affidavit to register the same in the Deeds Registry Office by presenting to the Deeds Registrar an office copy of such affidavit authenticated by the Registrar, and such copy shall be registered under and be subject to the Deeds Registration Act.[Cap. 58:02]29. Effect of registration
The registration of any such affidavit as aforesaid shall operate to vest in the judgment creditor registering such affidavit all the judgment debtor's estate and interest in the lands specified in such affidavit, subject to all such equities as may belong to other persons and subject to the judgment debtor's equity of redemption.30. Execution of judgments of subordinate courts against land
No execution against land shall issue direct upon a judgment obtained in a subordinate court, but on the application of a judgment creditor on notice to the judgment debtor a judge shall have power to order that such subordinate court judgment be removed and entered as a High Court judgment, whereupon, for the purposes of this Part, such judgment shall forthwith be deemed to be a judgment of the High Court.31. Satisfaction of judgment
Whenever satisfaction of a judgment, in respect of which an affidavit has been registered in the Deeds Registry Office, has been entered up by the Registrar, upon production of the Registrar's certificate of satisfaction the Deeds Registrar shall cause a memorandum of satisfaction to be made against the entry of such affidavit in the Deeds Register and such memorandum of satisfaction shall also be endorsed on the certified copy affidavit filed in the Deeds Registry Office; whereupon the lands of the judgment debtor shall become freed and discharged from the charge created by such affidavit and such affidavit shall stand expunged.32. Order for sale
Where an affidavit has been registered against the lands of a judgment debtor as aforesaid and provided the judgment in respect of which such affidavit has been registered remains unsatisfied, then the judgment creditor, at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor's interest in so much of the lands specified in the affidavit as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.33. Notice of application
Such application shall be by summons on fourteen days' notice to the judgment debtor and to all other parties who appear to be interested in the lands.34. Powers of High Court in regard to sale
On the hearing of the summons the High Court may direct all such inquiries to be made as to the nature of the debtor's interest and title (or otherwise) as shall appear proper, and, upon any order for sale being made, such sale shall be carried out in all respects in accordance with the directions of the High Court. All applications relating to the sale, subsequent to an order for sale, shall be made to a judge in chambers or otherwise as the judge shall direct.35. Application for stay
Any person who claims to be interested in any lands for the sale of which an order has been made may apply to the High Court to stay the sale and the High Court may, after hearing all necessary parties, give such directions and make such order as to the High Court shall appear proper and just.36. Land to be sold by public auction
Every sale of lands in satisfaction of a judgment shall be made by public auction unless the High Court for special reasons shall otherwise direct.37. Movable property to be first proceeded against
No judgment creditor shall, except by express leave of the High Court, register an affidavit under this Part against the lands of his judgment debtor until he has first endeavoured to recover the amount of his judgment debt by warrant of execution against the movable property of the judgment debtor and such execution has failed by reason of the insufficiency of the movable property seized to discharge the sum due or unless it appears that the judgment debtor has no movable property in his possession.38. Protection of officers
Neither the Deeds Registrar, nor the Registrar, nor any other person shall be liable to any action, suit or proceeding for or in respect of any act or matter done in good faith or omitted to be done in the exercise, or supposed exercise, of the powers conferred by this part or in pursuance of any order made under it.39. Appeal from Deeds Registrar or Registrar
Any person aggrieved by any decision of, or anything done or omitted by, the Deeds Registrar or the Registrar under this Part may appeal to a judge in chambers, and such appeal may be disposed of without formal notice of appeal unless the judge shall otherwise direct.Part V – Enforcement of judgments against land registered in the Lands Register
40. Application of Part
This Part shall apply to the enforcement of judgments against land registered in the Lands Register under the Registered Land Act, and no other land. Such enforcement shall be effected in the manner provided for in this Part and not otherwise.[Cap. 58:01]41. Inhibition order against registered land, etc.
42. Order for sale of registered land, etc.
Where a copy of an order under section 123 of the Registered Land Act has been registered in the Land Register and provided that the judgment in respect of which such order has been registered remains unsatisfied, full execution having been levied against any movable property of the judgment debtor, then the judgment creditor at any time after the expiration of six months from the date of such registration, may apply to the High Court for an order for the sale of his judgment debtor's interest in so much of the land, lease or charge specified in such order as may be deemed sufficient to discharge the said judgment and all proper costs, charges and expenses thereunder.43. Application of sections 33, 34, 35 and 36 to sales, etc., under this Part
Sections 33, 34, 35 and 36 shall, with any necessary modifications, apply to the sale of any interest in any land, lease or charge under this Part as they apply to a sale of land under Part IV.Part VI – Miscellaneous
44. Indemnity of Sheriff, etc.
45. Appearance by Sheriff and costs against Sheriff
In any civil proceedings before a court the Sheriff may appear in person or may be represented by a legal practitioner. In no proceedings shall a court order all or any part of the costs thereof to be paid by the Sheriff unless it considers that the claim involved arose, or was resisted, as the case may be, by reason of bad faith on the part of the Sheriff.46. Sheriff's powers of entry, search, etc.
47. Rules
48. Saving of existing forms, fees, etc.
All forms prescribed for use in connection with the execution of judgments by a Sheriff, and all fees, poundages and allowances payable to him under any written law in force immediately prior to the commencement of this Act shall, until amended or varied by rules made under section 47 continue to be used or payable or allowable as if the same had been prescribed or fixed under rules made under section 47.49. Partly completed executions
Nothing in this Act contained shall invalidate anything done in connection with the execution of any process which has not been completed at the time of the coming into operation of this Act and such execution may be continued and completed in accordance with the law in force immediately prior to such coming into operation or, if the court which issued such process shall so direct in accordance with this Act.50. Saving
Nothing contained in this Act shall in any way affect any of the provisions of the Army Act relating to the execution of processes against officers or soldiers of the Malawi Army or their property.[Cap. 12:01]History of this document
31 December 2014 this version
Consolidation
01 February 1968
Commenced
21 December 1967
Assented to