Sebirumbi v Konde (Civil Appeal 38 of 1994) [1994] UGHC 49 (6 June 1994)

THE REPUBLIC OF UGANDA

IN THE HIn<sup>H</sup> COURT OF UGANDA . AT XWALA

## CIVIL APPEAL no, 38 OF 199^

FEDERIKO SEBIRFMBI APPELLANT VERSUS

• - JOSEPH NELSON KONDE RESPONDENT BEFORE: THE HON, MR, JUSTICE GC4 OKELLO

RULING: .

This is an appeal against the order of a Deputy R^gistrai\* in Execution. whereby the Deputy Registrar had ordered the arrest and detention of the appellant in prison as a civil debtor. The appeal was brought by Notice of Motion under 0 46 r8 and 0 19 rr^A to 37 of the Civil Procedure Rules.

The grounds on which the appeal was based are:-

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- (1) that the arrest and detention of the appellant was illegal; - /•^ven <sup>o</sup> '' (2) that the appellant was not / chance to defend' himself.

The motion was supported- by an affidavit sworn by John Fred Kityo onr6th May 1994 as counsel duly instructed to conduct the prosecution of the appeal.

Presenting' the appellant's case, Mr. Kityo submitted that the arrest and detention of the appellant was illegal for the following reasons

(a) because he was arrested and detained in prison as a civil debtor without first being served with a notice to show cause why he should not be arrested as required by 0.19 r^4 CPR. That it'was-.nececessary that such a Notice be served first . on- a judgment debtor before he is arrested\* He cited Haji Hassan Bin Abdu Aziz vs. Ramilhan Bin Jarabo - Civil Revision No.\* 4/77 (1977) HCB 36. • • •' • •

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To the above, Mr. Lutaakome replied that 0 19 r 3^ CPR was discretional^... That court could in its discretion issue warrant of" arrest even without / was first the Notice to show cause issued\* He pointed out however that in the instant case, the appellant was riven a chance to explain himself after his arrest and before his detention was ordered. That only when he failed to rive satisfactory explanation as to how he planned to pay the debt that the appellant was sent to prison as a civil debtor. That the warrant of arrest was issued u/019 r 35. CPR.

The relevant 019 r 3^ CPR reads as under

- "3^ (1) Notwithstanding anythin^ in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention \ in a civil prison of a .iudrment-debtor who is liable to be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a Notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to a civil prison. - (2) Where appearance is not made in obedience to the notice, the court shall, if the decree holder so requires, issue \* a warrant for the arrest of the Judgment - Debtor".

The above provision of 0 19 r 3^ (1) of the CPR had earlier been considered by this court per Allen J as he then was in . Haji . Hassan Bin Abdu Aziz vs. Ramaian Bin Jarabo (1977) HCB 3& above. His interpretation of the provision is that before warrant of arrest is issued, Notice tc> show cause must first be served on the Judgment—debtor• I share that view becuase the situation when to issue warrant of arrest is covered u/0 19 r 3^ (2) of the CPR. That is, when the judgment-debtor has failed to appear in obedience to the notice to show cause u/0 19 *r* 3^ O) CPR.

In the instant case, there is no dispute that no notice to show cause was arrested. The warrant of arrest was issued in the first instance when it was applied for on 12/4/\$\*. . Then upon his arrest, the appellant was asked to show cause why he should not be detained for failure P y the debt due. He gave some explanation. But his explanation vas re3<sup>e</sup> and he was ordered to be committed to prison for six months as a ci .vxl debtor for failure to pay the debt due. In my view, the proper course

was for the Registrar to have first issued a Notice to show cause and have it served on the appellant before his arrest.

a man in the subset of a state to mention. The next reason was that the arrest and detention of the appellant was illegal because he was arrested for failure to pay the cost which was not yet due for payment. Mr. Kityo argued that the Bill of cost was taxed<br> $\frac{20}{20}$ /s/du and the Ruling there on was reserved to be delivered on 7/4/94. on $\nu L$ That the record shows that the Ruling was not delivered on 7/4/94 or any other date. That when he checked the record, the next thing he noticed was the arrest of the appellant. That there was no certificate of Taxation on the record when he checked it. That the Bill of cost was signed allowing the figure shown therein but it was not dated. Counsel submitted that as there was no ruling on the taxation, payment of cost was not yet due and the arrest of the appellant was therefore illegal. $11 - 1$ 100 117

For the Respondent. Mr. Lutaakome conceded that though the ruling on taxation was reserved to be delivered on $7/4/94$ , it was not delivered on that day because it was not ready. That it was adjourned to $8/4/94$ , when it was finally delivered. That the certificate of taxation was extract- $\Delta$ ed.much later on 18/4/94. The vertex wave value of weight with

$r = r^{\mu}$ and $r$

$\cdot \cdot / 4 \cdot$

I have had the chance to peruse the record of the relevant Taxation proceedings. I must say that the record of the proceedings is not clear as to whether the Ruling, on the taxation was or was not delivered and if delivered when it was so delivered. The record shows that after the taxation on 30/3/94, the Ruling was reserved to be livered on 7/4/94. But thereafter, the record is silent about the delivery of the Ruling. It does not reflect what happened on 7/4/94. There was nothing to show whether the Ruling was delivered on 7/4/94 as scheduled or not. If not when it was adjourned to. The record is simply silent on this. I think the importance of noting clearly and dating where appropriate every step of a court proceeding need no over emphasis. It helps to show what was done when and the dating helps where computation of time is required. $0$ 30

**And State State State**

In the instant case, I have no doubt in my mind that the -Ruling was "• . delivered. The Bill of Cost was taxed and amount payable by the Judgment—debtor as cost was allowed. This .amount became due for payment when the Registrar had taxed and allowed it. That is when the Ruling was read.

ficoprding to paragraph 2 of the affidavit in Reply, the Ruling was delivered on 8/4/94. The record does not support this claim. It. shpws that after, taxation on 30/3/94, the Ruling was reserved to be delivered on 7/4/94. It would appear that the Appellant was not notified o . of the the adjourned date when the Ruling was to be delivered. . There is no evidence of service of Notice of the date of delivery of the Ruling on the. appellant. Though he did not attend taxation proceedings despite service on him of the hearing Notice thereof, I think the Appellant was still entitled to Notice particularly when the Ruling was reserved to be delivered on another date when the Ruling was set for delivery. He therefore had no way of knowing the amount of cost allowed by court against him. This still goes to show the propiety of the requirement to first serve the Appellant with a Notice to show cause before he could be arrested in execution

of the Pecree. , • ;y . *. <sup>r</sup> - -... ,*

p) Mr. Kityo further submitted\*that under 0.19 r 3& CPR, a warrant. of arrest could not be issued until the .judgment-creditor had paid into court subsistence allowance for the maintenance of the judgment debtor\*-in prison. He pointed out that in the present case, on 22/4/94 'when warrant of ar'est• was•issued against the Appellant, the judgmentcreditor had not paid into court any subsitence allowance.. That subseqa, uently on 29/4/94, the Registrar .tried to remedy the irregularity by fixing the rate of the subsitence allowance at 1000/= per day\*

To the above, Mr. Lutaakome.replied that the appellant did not give evidence \* • •• . j. **to'**show that no subsistence allowance was paid into court by judgment creditor when the appellant was arrested. That the burden was on the

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appellant to prove that no such payment of subsistence allowance was made at the time when the warrant of arrest was issued.

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**Mr. Kityo** replied that the burden to show that the subsistence allowance was paid into court at the time when the warrant of Arrest was .issued was on the Judgment-creditor. ,<sup>f</sup> <sup>v</sup> . , . . <sup>c</sup> {

It is necessary to reproduce the relevant 0 19 r 36 (1) of the CPP. It . <sup>1</sup> r ' . / \* \* *i, \*•\* \*•'' • reads,*

"No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into court such sum as may be sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before court." The above provision ,is in my view mandatory.. It requires the judgment creditor to pay into court an amount which is sufficient yin custody judgment-debtorMrom the time of his arrest until he can to maintain the be .produ.c.e.d

before court.

The question to answer in this case is whether there was such payment into court by the judgment-creditor when the warrant of arrest was issued. Mr. Lutaakome submitted that the burden to show that such payment was not effected when the warrant of arrest was issued was on the appellant. I agree with him. Payment of subsistence was a condition precedent to the issuance of the warrant of arrest. When the warrant of arrest is issued, there arises a presumption that the necessary payment into court of the subsistence was effected. It then becomes incumbent upon the appellant **who** wishes court to believe that no such payment was effected to'rebut that presumption (S. 102 EA). In the instant case, there was no such rebuttal evidence.

Mr. Kityo also complained about the inclusion in the warrant of arrest the amount of additonal 300,000/= over and above the amount of cost allowed. Mr. Lutaakome explained that that amount was to defray the cost of

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execution ?"nca . the appellant was to be arrested. from Masaka. That travelling to Masaka in a hired vehicle and back would cost that amount. power It is within the Z\*^ of the cpurt to allow court' Bailiffs to claim such additional sums as may in the opinion of the court reasonably necessary to cover the actual cost of journey, necessarily made in the execution out side the limit of his place of business. (Proviso to ^ule 15 of court-Bailiff, Rules 1987)• The Registrar was therefore within his power to allow that amount.

Considering all the circumstances of the case and the law applicable, lam of the view that the order of arrest and. detention of the Appellant in execution of the Decree was not proper. The "order of detention i6 thus set aside. '' " ' ' :

G. M. OKELLO JUDGE, 6/6/94. - <• , • . . •

Ruling: Read in the presence of Sengooba holds brief of Kityo for Appellant. No body for the Respondent

Mr. Komakech Court Clerk.

,G. M. OKELLO

JUDGE,

2. J0 p.m.

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