Sekabanja v Asanansio Sajjabi and Others (CIVIL SUIT NO. 6 of 1976) [1984] UGHC 1 (7 June 1984)

## IN THE HIGH CMRT *OF UGANDA*

AT KAMPALA

*6 OF* 1976 CIVIL SUIT NO.,

PLAINTIFF S. M. SEKABANJA

- VERSUS

DEFENDANT ' ASANANSIO: SAJJABI AND 2 OTHERS

BEFORE: . THE HONOURABLE MR. AG o.. JUSTICE A. N. KAROKORA

ORDER: RULING'- AND

This came before me by way of ''Notice to show cause why warrant of arrest should not issue." The application is made under order

19 rule

'J<sup>1</sup>- *■ir'*

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Mr. judgment creditor/j/c was perfectly entitled to enforce his rights provided by the lav/. He submitted judgment was passed Costs were subsequently taxed and allowed at Shs. 271,^90/=. on 19/8/83. Efforts to procure payment had proved futile. Kateeba, Counsel for judgment creditor, submitted that the

arrest to Valentine Matovu to come and show cause why he should not be committed to prison. It was his humble prayer that the Court issues warrant of

On the other hand, Mr. Sekandi, Counsel for the respondent personal capacity but in a representative capacity. He submitted that in such a case, the personal representative could not be . ... arrested unless it was proved that he deceased from which he can raise money to pay the amount. He submitted that even if a person was sued in his .personal capacity, he could not be sent to prison if he was a pauper. judgment debtor/j/d submitted that his client was not sued in his was holding the estate of the

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Secondly, it was submitted on the behalf of the j/d that he was not aware of the bill of costs having been taxed. He learnt about it after he had been served with notice to show cause why warrant of arrest should not issue.

He submitted that if taxation ever took place, it was done ex-parto./ ' He- -submitted that he was entitled to be heard. However, he prayed that now that.he had become aware, he was to make application 'for setting aside ex-parte taxation. He went further •4-. and submitted that the respondent should be given opportunity to regularise the taxation.

was a personal representative of deceased, there was nonetheless no prop "ty of deceased from which he could raise the money. Further, when the suit was heard and completed, the respondents Advocates, who never turned up for taxation when they had been served. So he submitted that the respondents are deemed to have been served. In reply, Mr. Kateeba submitted that although the respondent were being represented by M/S Mpungu and Balikuddembe and. Company no evidence that he had no property of deceased from which he had

It was further submitted that if execution is not granted, As there was no • committal should be granted. the j/c would be deprived of his decree. ■- application for stay of execution, the application for arrest and

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Now having heard the submission of both Counsel and having carefully considered the submissions and having perused the record, record that the bill of costs was fixed for ex-parte So the submission by Mr. Kateeba that the <sup>N</sup> taxation on deemed to have been served does not arise, as the respondents are In my view, the j/d Counsel -or were entitled to be the respondents heard when the bill of costs was being taxed. .. *ft* v: j.not served. it is cle^r on 2.2.84.

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the j/c to show that the respondent, j/d is holding property of his deceased father from which the costs claimed could be realised, but that he is refusing to pay. Further, the Court must be satisfied, before making an the judgment debtor was bound in any fiduciary capacity to account heir, the onus is on - see order 19 rule J7(2)(a) of the Civil Procedure Rules. Secondly, the respondent, having been brought in the suit, because of being *'* order of arrest of the j/d that the decree is for a sum for which

In view of the above, I think imprisonment of the respondent would cause serious injustice as there is no evidence that he derived any benefit of any sort from the subject matter which brought about these costs. In the interest of justice, the prayer sought by\* the respondent for adjournment in order to regularise the ta> -tion of bill of costs is allowed so that the respondent is given opportunity of regularising taxation of the bill of costs. Therefore, the "Notice to show cause why warrant of arrest should not issue", is disallowed.

Each party to bear its own costs. .

( A. N. *KABOKORA )* AG, *JUDGE 1/6/1984*

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Mr. Ssekandi for Respondent. Ruling and Order read.

<sup>I</sup> AG, JUDGE 7/6/1984