George Spencer v Agaba Mugisha (Miscellaneous Application 79 of 2024) [2024] UGHC 1046 (11 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 0079 OF 2024 (ARISING FROM ELECTION PETITION NO. 006 OF 2016 SPENCER GEORGE WILLIAM :::::: APPLICANT/JUDGMENT DEBTOR** 6 **VERSUS AGABA ABBAS MUGISHA ::::::: RESPONDENT/JUDGMENTCREDITOR BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **RULING**

## **Introduction:**

- 12 The applicant moving under sections 43 (2) & 3 (b) of the Civil Procedure Act and Order 52 rules 1 and 3 of the Civil Procedure Rules sought orders: - (1) For his release from civil prison on ground of ill health that requires constant

15 medical attention and treatment.

(2)That the costs of the application be in the cause.

# **Grounds of the Applcation:**

- 18 The supporting affidavit of the applicant states as follows: - (1)The applicant is aged 53 years and had filed election petition No. 006 of 2016 against the Respondent which he lost. - 21 (2)The Respondent did not serve him with a copy of the taxation hearing notices and notice to show cause and the applicant was subsequently arrested on a bill of costs taxed ex-parte. - 24 (3)The applicant was arrested at his home in Rwenjaja, Kitagwenda District on 19/08/2024.


(4)The applicant is of advanced age and battling diabetes and hypertension, ailments that require constant medical supervision and treatment and his 3 situation cannot be adequately managed within prison where he is currently detained.

(5)The applicant is willing to deposit a copy of his title in court as security to 6 enable his release from prison to access specialized treatment.

## **Reply of the Respondent:**

9 The motion is vehemently opposed by the Respondent who contended as follows:

- (1)The application is an abuse of court process, misconceived and ought to be rejected with costs. - 12 (2)The applicant after losing the petition in the High Court, the Respondent filed a bill of costs which was taxed and allowed at shs 38,535,000/=. The applicant appealed against the decision of the trial court and the appeal was dismissed - 15 by the Court of Appeal where the Respondent filed his bill of costs which was taxed and allowed at shs 23,450,000/- all totaling to shs 61,985,000/=. - (3)The Respondent since the year 2016 unsuccessfully attempted to serve 18 execution documents upon the applicant, which prompted the Respondent to obtain an order for substituted service, vide HCMA No. 66 of 2019, granted on 30/09/2019. - 21 (4)The Respondent through his lawyers served the applicant with taxation hearing notices through the Daily Monitor of 14/10/2019 but the applicant did not turn up on the set date for hearing and upon filing of the execution 24 application, the applicant still evaded service where the Respondent sought leave to serve though substituted service.


- (5)The Notice to Show Cause was thus served through the daily Monitor of 28/09/2020 and again the judgment debtor did not turn up. - 3 (6)The Court proceeded to issue a warrant of attachment and sale of immovable property of the applicant on 7/10/2020 which was countered by objector proceedings by the applicant's wife vide No. M. A No. 71 of 2020; Ahairwe 6 Maxime Judith v Agaba Abbas Mugisha & E. C where injunctive orders were issued stopping the execution.

(7)Following the issuance of injunction, the Respondent applied for change of 9 the mode of execution from attachment to arrest and a notice to show cause was again issued to the applicant through substituted service in the Daily Monitor of 3/02/2021 and again the applicant did not turn up which prompted 12 court to issue a warrant of arrest of the applicant (judgment debtor).

- (8)The warrant was extracted and endorsed by Court on 5/04/2022 and ever since, the bailiff was tracing for the applicant / debtor till his arrest on 15 19/08/2024. - (9)The warrant was issued in accordance with the orders of court which were not complied with by the applicant who was fully aware of the execution 18 proceedings since the wife filed objector proceedings against the same. - (10) The reasons advanced by the applicant to justify the release are weak as there is no report from the medical officer in –charge of Katojo Prison to 21 the proving that the applicant's condition cannot be handled while in Prison. - (11) The value of the title attached is not certain in relation to the amount claimed since there is no valuation report to that end. Further, the title does 24 not demonstrate any effort by the applicant to pay the sum ordered by court.


(12) The applicant is merely using the process of court in an abusive manner to deny the Respondent the fruits of litigation through unnecessary delays. As 3 such it was equitable that the application is dismissed with costs.

## **Representation and Hearing:**

## *Mr. Bwambale James of M/s Mubiru & Aruho Associated Advocates* appeared for

- 6 the applicant while *Mr. Nsamba Abbas* appeared for the Respondent. Both counsel addressed me on the merits of the motion through written submissions which I have duly considered herein. - 9

# **Issues:**

- 12 The pleadings by the parties and the written submissions raise one fundamental issue in my view being - **whether the applicant meets the test for release from civil prison on account of illness.** - 15

# **Consideration by Court:**

18 Sections 42 of the Civil Procedure Act provides that:

### *42. Detention and release*

21 *(1) Every person detained in prison in execution of a decree shall be so detained—*

*(a) where the decree is for the payment of a sum of money exceeding* 24 *one hundred shillings, for a period not exceeding six months; and (b) in any other case, for a period not exceeding six weeks; except that he or she shall be released from such detention before the* 27 *expiration of the period of six months or six weeks, as the case may be—*


| | (c)<br>on the amount mentioned in the warrant for his or her detention | |----|---------------------------------------------------------------------------------| | | being paid to the officer in charge of the prison; | | 3 | (d)<br>with the leave of the court, on the decree against him or her being | | | otherwise fully satisfied; | | | (e)<br>with<br>the leave of the court, on the request of the person on whose | | 6 | application he or she has been so detained; or | | | (f)<br>on the omission of the person, on whose application he or she has | | | been so detained, to pay subsistence allowance. | | 9 | (2)<br>A judgment debtor released from detention under this section shall not | | | merely by reason of the release be discharged from his or her debt, but he or | | | she shall not be liable to be rearrested under the decree in execution of which | | 12 | he or she was detained in prison. | | | Section 43 of the same Act provides as follows: |

### *Release on ground of illness*

- 18 *(1) At any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his or her serious illness.* - *(2) Where a judgment debtor has been arrested, the court may release him or* - 21 *her if in its opinion he or she is not in a fit state of health to be detained in prison.*

*(3) Where a judgment debtor has been committed to prison, he or she may be* 24 *released from prison—*

*(a) by the superintendent of the prison in which he or she is confined on the ground of the existence of any infectious or contagious disease;* 27 *or*


*(b) by the committing court or the High Court on the ground of his or her suffering from any serious illness.*

3 *(4) A judgment debtor released under this section may be rearrested, but the period of his or her detention in prison shall not in the aggregate exceed that prescribed by [section 42](https://ulii.org/akn/ug/act/ord/1928/1/eng@2000-12-31#part_III__sec_42)*.

Mr. Bwambale for the applicant relying on the affidavit of the applicant submitted that the applicant is of advanced age and that he suffers from Hypertension and 9 diabetes which conditions cannot be well managed within Katajo Prison where he is detained. The applicant is willing to deposit a certificate of title for land comprised in Kyaggwe Block 107, Plot 1059 registered in his names. This was countered by 12 learned counsel for the Respondent who contended that there is no evidence by a medical officer from Katojjo Prison confirming that the applicant is not in a fit state of health. That illness envisaged under section 43 of the Civil Procedure Act must

15 be grave and must be certified by the medical doctor of the prison to the effect that the debtor heath cannot be managed while in prison. *(See: Kawesi Andrew v Uganda, HCMA No. 143 of 2019)*. He asserted further, that there is no valuation 18 report of the said property to ascertain whether it can meet the obligation of the debtor.

### **Decision:**

I have carefully considered the law, the facts and the submissions of both counsel on this issue. Release of a civil debtor on account of illness was intended to ensure that

24 civil debtors do not die in prison. The debtor must however satisfy court that his state of health cannot be managed within the prison. The most reliable means of proof is a medical report from a medical superintendent or doctor of the prison 27 confirming certifying that such debtor's health cannot effectively be managed within


the prison facilities. Further, even when that is proved, court is not commanded to release the debtor unconditionally. The release may be conditional to ensure that the 3 fruits of the judgment or order are recovered by the successful party.

The applicant indicated under paragraph 8 of the affidavit in support of the motion 6 that he was battling diabetes and hypertension as such he needed constant medical supervision and treatment. He asserted that his condition cannot be managed within the prison where he was detained. He attached annexure 'B', a medical form from

- 9 Ntara Health Centre, where he was examined and it was observed by the doctor that the applicant has an old case of Diabetes and Hypertension for the last 10 years and he looked weak. He also attached annexure 'C' further confirming that he suffered - 12 from hypertension and diabetes and that he was admitted to Prison on 20/08/2024. That he had chest pain and other conditions. That he needed oral medical and proper nutrition. The Doctor who examined the patient recommended that the patient - 15 needed access to more specialized services to control blood pressure and food to keep the blood sugars low and controlled. There is a medical form dated 21.08.2024 where the applicant was examined by a doctor at Katojo Prison HC. III where the - 18 applicant is currently detained. It was observed in the report that the patient needed access to more specialized services to control blood pressure and access to foods which are safer to keep the blood sugars low like green vegetables, matooke, irish - 21 potatoes on a daily meal. The patient was to be kept off posho and beans to minimize worsening peptic ulcer disease. I am satisfied based on the available evidence, that the applicant's state of health may not be well managed within the prison facilities 24 where he is detained.

The court should not be insensitive to the life and health of those in civil prison since 27 detention of a civil debtor is not a punishment but a means to compel the judgment


debtor to act in accordance with the orders of court. Where there is ample evidence of illness of the debtor, court should be human enough to order the debtor to be 3 released from civil prison to access better treatment. The release may be conditional or unconditional depending on the facts of each case.

- 6 In the present suit, the costs sought to be recovered from the applicant were awarded in Election Petition No. 006 of 2016 which he lost. He appealed to the Court of Appeal and lost. The bills of costs were drawn and taxed after proper service by way - 9 of substituted service. The Respondent attempted to execute the decree by way of attachment and sale of movable property of the applicant being a residential house at Rwenjaza, Kitagwenda District and a commercial plot at Kisugu Kampala and the - 12 wife lodged objector proceedings under HCMA No. 070 of 2020 and an interim order of stay of execution was granted by Court on 30th October 2020 in HCMA No. 71 of 2020. The Respondent later changed the mode of execution to arrest and - 15 detention of the applicant who was not traceable by then. The evidence demonstrates that the applicant has for a long time been acting malafide with the intent to frustrate the efforts of the Respondent from enjoying the fruits - 18 of his successful litigation against him. He was fully aware of the pending obligation to pay costs since 2016 and to-date, he has not made any effort to pay the same. If indeed he has land comprised in Kyaggwe Block 107, Plot 1059, he ought to have - 21 considered selling the same to meet his long standing pending obligations and not wait for his arrest and committal to civil prison. Notably, the applicant by this application does not state any efforts he intends to put in place to pay the amount in - 24 issue. He only stated that he is willing to deposit the certificate of title in court to secure his release to attend to his health. Therefore, whereas the applicant is ill and


requires specialized medical care, he seems uncommitted to addressing the problem that has taken him to civil prison by paying the money claimed by the Respondent.

I find that this is proper case where court should order a conditional release of the applicant given his previous conduct. Therefore, this application succeeds with the

6 following orders;

- **1. It is hereby ordered that the applicant be released from civil prison on account of illness to enable him access specialized medical and other care.** - 9 **2. The said release from civil prison is conditional upon the applicant paying 30% of the taxed costs and depositing in court security for payment of the balance.** - 12 **3. The parties shall upon payment of the said 30% of the taxed costs and security for the balance, agree on and file in court a payment plan for the balance by the applicant/judgment debtor, in default of which, the release** 15 **order herein shall automatically lapse.** - **4. The costs of this application shall be met by the applicant.**

**It is so ordered.**

Vincent Wagona

**High Court Judge**

21 **FORTPORTAL**

**DATE: 11.10.2024.**