Ssettebere v Simbalukire (Miscellaneous Appeal 39 of 2024) [2025] UGCommC 50 (27 February 2025)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPEAL NO. 39 OF 2024 (ARISING FROM EMA NO. 25 OF 2023)** 10 **(ALL ARISING FROM CIVIL SUIT NO. 122 OF 2022) SSETTEBERE CHARLES GALIWANGO ::::::::::::::::::::::::::::: APPLICANT VERSUS SIMBALUKIRE MUHIRWE INNOCENT :::::::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

# 15 **RULING**

#### Introduction

This application was brought by way of Notice of Motion under **Section 37 of the Judicature Act, Cap. 16 and Order 50 rule 8 of the Civil Procedure Rules SI 71-1**, seeking orders that:

- 20 1. The Applicant, who was committed to civil prison on 31st October, 2024, be released from civil prison forthwith. - 2. Costs of this application be provided for.

## Background

The background of the application is detailed in the affidavit in support 25 deponed by **Nakimuli Joan**, the Applicant's wife, and is summarized below:

1. That the Respondent filed *Civil Suit No. 122 of 2022* by a summary plaint which did not deserve to be filed as a summary suit.

- 5 2. That there was no effective service on her husband, the Applicant. That having detected fraud, her husband also filed *Civil Suit No. 531 of 2023*, however, while the suit was still pending, the Respondent's lawyers proceeded to process a warrant of arrest. - 3. That on 31st October, 2024, her husband was arrested by the Court 10 brokers and produced before the Registrar and committed to civil prison. - 4. That the committal was protested since he was never served with a Notice to show cause as required by **Order 22 rule 34(1) of the Civil Procedure Rules**. - 15 5. That her husband was extremely sick and looked so. That his lawyers said that, the medical forms were on his phone and needed to be uploaded but the Learned Registrar without any investigation or verification ordered, the committal of the Applicant.

**Nakimuli Joan** further deponed a supplementary affidavit on behalf of the 20 Applicant and reiterated her averments in the affidavit in support. The deponent added that the orders in *Civil Suit No. 122 of 2022* were a nullity and ought to be set aside since *Civil Suit No. 527 of 2017* showed that the suit should not have proceeded summarily.

In his affidavit in reply, the Respondent, **Simbalikure Muhirwe Innocent**, 25 opposed the application, contending that:

1. In May, 2018, vide *Civil Suit No. 527 of 2018*, the Applicant/judgment debtor and the Respondent reached a written settlement of UGX 90,000,000/=, where the Applicant consequently paid UGX 20,000,000/= and agreed to pay the balance of UGX 30 70,000,000/= by 28th February, 2019.

- 5 2. Upon the Applicant's failure to pay as agreed, the Respondent filed *Civil Suit No. 885 of 2020* at the Commercial Division based on the debt repayment agreement of 2018. However, the Court closed the suit and advised him to prosecute *Civil Suit No. 527 of 2018* that was pending at the Civil Division. - 10 3. The Respondent filed a summary suit vide *Civil Suit No. 122 of 2022* at the Commercial Division against the Applicant for recovery of the outstanding balance of UGX 70,000,000/= and a default judgment was entered against the Applicant. - 4. The Respondent vide *EMA No. 25 of 2023* applied to execute the 15 judgment and decree in *Civil Suit No. 122 of 2022* and Notices to show cause were issued on 30th January, 2023 and 13th March, 2023 respectively and served onto the Applicant. - 5. On 6th November, 2023, the Court issued a fresh Notice to show cause in *EMA No. 25 of 2023*, which was also served on the 20 Applicant's lawyers on 8th November, 2023. - 6. On 7th May, 2024, the Court issued a warrant of arrest in execution of *EMA No. 25 of 2023* against the Applicant, but it expired before the Applicant could be traced and on 22nd October, 2024, the Court issued a fresh warrant of arrest. - 25 7. On 31st October, 2024, when the Applicant was brought to Court, he did not produce a single medical document to prove his sickness. - 8. The Applicant, has not denied his indebtedness to the Respondent, which is a major ground to warrant the release of the judgment debtor when the judgment is fully settled or the judgment debtor 30 makes part payment and enters into a payment schedule.

#### 5 Representation

The Applicant was represented by **M/s John F. Ssengooba & Co. Advocates** while the Respondent was represented by **M/s Fortis Advocates**.

Both parties were directed to file their written submissions, but only the 10 Applicant did, and the same have been considered by the Court.

## Grounds of Appeal

The grounds of appeal in this application, as deduced from the application, its affidavit in support, and the submissions of Counsel for the Applicant, are:

- 15 1. That the Learned Registrar erred in law and fact when he issued a warrant of arrest in the execution of the judgment and decree against the Applicant without following the lawful procedure. - 2. That the Learned Registrar erred in law and fact when he failed to consider the serious illness of the Applicant while committing him to 20 civil prison.

# Applicant's submissions

Counsel for the Applicant submitted that on 31st October, 2024, the Applicant was arrested without any notification and produced before the Registrar who committed him to civil prison for six months, which the 25 Applicant believes was unlawful because of the following reasons:

- (i) Before filing *Civil Suit No. 122 of 2022*, the Respondent had earlier filed *Civil Suit No. 527 of 2018* **(Civil Division)** and *Civil Suit No. 885 of 2020 (***Commercial Division)**, and is therefore

- 5 guilty of illegality due to filing different suits between the same parties and on the same subject matter. That as a matter of fact, *Civil Suit No. 885 of 2020* was dismissed for offending **Section 6 of the Civil Procedure Act.** - (ii) No Notice to show cause was ever served on the Applicant as 10 required by the provisions of **Order 22 rule 34(1) of the Civil Procedure Rules.** - (iii) The Applicant informed the Court that he was extremely sick and had just been discharged from a hospital, despite all these illegalities, but he was still committed to a civil prison. - 15 Counsel further submitted on the doctrine of approbation and reprobation asserting that the Respondent purported to have surrendered his interest to the Applicant but still occupies and utilizes the suit property and that this is a triable issue. Further, that the Applicant filed *Civil Suit No. 531 of 2023* which is still pending before this Court. - 20 On the Registrar's order offending **Order 22 rule 34(1) of the Civil Procedure Rules** and the principles of natural justice, Counsel for the Applicant submitted that the health of the Applicant is extremely fragile and any shock can kill him. Counsel relied on the case of *Sarah Buwembo Kakumba Vs Samuel Kiwanuka & Another HCCA No. 1670 of 2013.* - 25 Analysis and Determination

I have considered the pleadings, the law, evidence, authorities and submissions of Counsel for the Applicant herein.

It is a well-established principle that appeals are a creature of statute. To that effect, **Order 50 rule 8 of the Civil Procedure Rules** provides that:

5 *"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice."*

Therefore, this Court has the legal obligation to re-appraise the evidence on record and come up with its own decision, not disregarding the decision 10 appealed from. (See: **Section 80 of the Civil Procedure Act**, *Fr. Narsensio Begumisa & 3 Others Vs Eric Tibebaga SCCA No. 17 of 2002* and *Pandya Vs R [1957] EA 336)*. An appellate Court will only interfere with the exercise of discretion of a Registrar, where, he or she incorrectly applied a legal principle, or the decision is so clearly wrong that 15 it amounts to an injustice.

This appeal arises from the order of the Learned Registrar, **His Worship Okumu Jude Muwone** entered on 31st October, 2024 vide *Execution Miscellaneous Application No. 25 of 2023*, wherein the Applicant was committed to civil prison for six months.

- 20 In her affidavit in support and the written submissions, the deponent and the Applicant's Counsel insist that, before the execution proceedings, the Respondent had filed several suits regarding the same matter which amounts to an illegality. I shall first consider the above allegations to establish whether they interfered with the required execution procedures. - 25 In his affidavit in reply, the Respondent under paragraph 5, gives the background of this application to the effect that; in 2018, vide *Civil Suit No. 527 of 2018*, he filed a suit at the Civil Division, against the Applicant for recovery of money that he gave to the Applicant in 2014 for purchase of three pieces of land. That in May, 2018, the parties reached a written 30 settlement of UGX 90,000,000/= and the Applicant consequently paid UGX 20,000,000/= and agreed to pay the balance by 28th February, 2019.

5 That upon failure to pay the agreed sum, his lawyer advised him to file *Civil Suit No. 885 of 2020* at the Commercial Court based on the agreement. That an ex parte judgment was granted in favour of the Respondent and vide *Misc. Application No. 1193 of 2021*, the Applicant sought orders to set aside the said judgment. The application was granted 10 and the Judge closed the file and advised the Respondent to proceed with

*Civil Suit No. 527 of 2018* at the Civil Division.

- However, *Civil Suit No. 527 of 2018* abated on the same day *Misc. Application No. 1193 of 2021* was granted. In evidence, the Applicant relied on the order in *Civil Suit No. 527 of 2018* annexed as "**B**" attached 15 to the affidavit in reply. That on 17th February, 2022 vide a summary suit, he then filed *Civil Suit No. 122 of 2022* at the Commercial Division for recovery, of the outstanding sum of UGX 70,000,000/=. In evidence, he attached annexures "**C1" , "C2"** and **"C3**"; that is; the plaint, affidavit of service and default judgment respectively, to the affidavit in reply. - 20 Given the above background and **Section 6 of the Civil Procedure Act**, which prohibits the Court from handling any matter in issue directly and substantially proceeding in a previously instituted matter between the same parties and the same subject matter before a competent Court, the Respondent instituted *Civil Suit No. 885 of 2020*. **Hon. Lady Justice** - 25 **Cornelia Kakooza Sabiiti** (as she then was), subsequently dismissed the suit and directed the parties to proceed with *Civil Suit No. 527 of 2018* at the Civil Division. The institution of *Civil Suit No. 122 of 2022*, was premised on the fact that *Civil Suit No. 527 of 2018* had abated on 11th February, 2022, therefore, no proceedings regarding the parties and the 30 subject matter existed prior to the institution of the current suit. 5 In the circumstances, I do not find the above to have interfered with the execution proceedings in any way. I will now address the grounds of appeal.

Ground 1: The Learned Registrar erred in law and fact when he issued a warrant of arrest in the execution, of the judgment and decree against the

10 Applicant without following the lawful procedure.

**Section 38(d) of the Civil Procedure Act** provides for the arrest and detention in prison of a judgment debtor, as one of the modes of execution. (See: *Bracia Czeczowiczka Vs Otto Markus & Another [1934-1936] 3 EACA 5*). **Order 22 rule 34 of the Civil Procedure Rules** provides for the 15 discretionary power to permit the judgment debtor to show cause against detention in prison whereas, **Order 22 rule 19(1)(a) of the Civil Procedure Rules,** mandates the issuance of a Notice to show cause why execution should not issue, before issuance of a warrant of arrest where execution is sought more than a year after the date of the decree or order

20 sought to be executed.

**Hon. Justice Stephen Mubiru** in the case of *Abdul Latif Kamulegeya Vs Blaise Twagirayesu Miscellaneous Appeal No. 318 of 2024***,** observed that:

*"The ordinary procedure is that on an application filed by the* 25 *decree-holder for the arrest of the judgment debtor, the Court has to first issue a notice to the person concerned. This satisfies the requirements of natural justice. The person concerned should be given a chance and sufficient opportunity to show cause as to why he or she should not be arrested or detained in prison. It is only* 30 *when the person does not respond to this, or when he or she*

## 5 *responds does not give a proper justification, that the Court can go ahead with issuing an arrest warrant."*

Turning to the instant case, Nakimuli Joan, in her affidavit in support avers that a Notice to show cause why execution should not issue was not served upon the Applicant/judgment debtor and that he was arrested by

10 surprise. However, the Respondent contends in his affidavit in reply that due process was followed, as Notices to show cause were issued and served to the Applicant and his lawyer prior to the issuance of the arrest warrants.

This application arises from a summary suit that the Respondent filed against the Applicant vide *Civil Suit No. 122 of 2022*, of which a default 15 judgment was entered on 12th April, 2022 against the Applicant as per annexure **"C3"** attached to the Respondent's affidavit in reply. The Applicant filed *Misc. Application No. 394 of 2023* for orders to set aside the said default judgment, however, it was dismissed with costs on 16th April, 2024, as evidenced by annexure **"L"** attached to the Respondent's 20 affidavit in reply. The Respondent, vide *EMA No. 25 of 2023*, applied to

execute the default judgment and decree entered in *Civil Suit No. 122 of 2022*.

With that background, I have carefully examined the Notices to show cause why execution should not issue, which were served unto the Applicant's

25 Counsel and sent to the Applicant's WhatsApp contact 0752537858 in respect of *EMA No. 25 of 2023*. For instance, on 30th January, 2023 and 13th March, 2023, two Notices to show cause were issued by the Court. They are collectively marked as annexure "**E1"** attached to the Respondent's affidavit in reply. The service of the Notice to show cause 30 dated 30th January, 2023 was evidenced by an affidavit of service, annexure **"E2"** attached to the affidavit in reply, dated 20th February, 2023

- 5 by Wanyama Emmanuel Bright, who deponed that on 13th February, 2023, he sent a copy of the Notice to show cause to the Applicant's WhatsApp contact 0752537858 as evidenced by the screenshots which the Applicant does not deny. - Also, as per annexure **"F"** attached to the affidavit in reply of the 10 Respondent, an affidavit of service dated 15th March, 2023 deponed by Wanyama Emmanuel Bright; a Notice to show cause dated 13th March, 2023 was also served onto the Applicant's Counsel, on 15th March, 2023 and it even bears the Applicant Counsel's stamp, a fact which the Applicant does not dispute. Thereafter, a warrant of arrest dated 13th April, 15 2024 was issued, as evidenced by annexure **"H"** attached to the affidavit in reply.

A Notice to show cause why execution should not issue dated 6th November, 2023, is also on record. Service was evidenced by an affidavit of service (annexure **"I"**) dated 8th November, 2023 by Wanyama 20 Emmanuel Bright, who deponed to have served the same unto the Applicant's lawyer on 8th November, 2023. The Notice to show cause also bears the Applicant Counsel's signature acknowledging its receipt.

I also observed that various arrest warrants were issued. For instance, a warrant of arrest (annexure **"M1"**) was issued on 7th May, 2024, but it 25 expired before the Applicant could be traced; another warrant of arrest was issued on 20th August, 2024 (annexure **"N2"**) though it expired before the Applicant was arrested and a fresh warrant of arrest was issued on 22nd October, 2024, as evidenced by annexure **"P"**, attached to the affidavit in reply, upon which the Applicant was arrested and brought to 30 Court on 31st October, 2024.

- 5 Much as the Applicant denies having been served with the Notice to show cause via his WhatsApp, he does not deny the fact that his lawyers were served with the other Notices to show cause why execution should not issue as evidenced by annexures **"E1"**, **"F"** and **"I"** attached to the affidavit in reply. Also, the Applicant does not deny the appearance of his - 10 Counsel on the days that were indicated on the Notices to show cause why execution should not issue against him. I am therefore fortified by **Order 3 rule 4 of the Civil Procedure Rules**, which presumes service of process onto the advocate to be duly communicated and made known to the party to whom that advocate represents. - 15 Further, I perused the proceedings of the Court taken by **His Worship Okumu Jude Muwone**, the Learned Assistant Registrar, on 31st October, 2024, where he noted that:

*"I have taken into consideration the submissions of both counsel. The counsel for the judgment debtor contended that the judgment* 20 *debtor was not issued with notice to show cause, but this is not the first time the judgment debtor and his lawyer are appearing in Court on notice to show cause in fact, it is the third time. Secondly, the judgment creditor has been renewing the warrant on the ground that they cannot get the judgment debtor. In that* 25 *circumstance, I do find that both the judgment debtor and his lawyer are aware of this matter, and his argument that notice to show was not issued is baseless and a waste of Court's time.*"

I am therefore not persuaded by Counsel for the Applicant's submission 30 that the Applicant's arrest on 31st October, 2024 was by ambush thereby offending **Order 22 rule 34(1) of the Civil Procedure Rules** and the principles of natural justice for non-service. In light of annexures **"E1",**

- 5 **"F"** and **"I"** attached to the affidavit in reply; I am convinced that the Applicant and his Counsel were served prior to the Applicant's arrest on 31st October, 2024, with the Notices to show cause specified hereinabove and further, his lawyer appeared in Court on the dates mentioned therein. - 10 In the circumstances, I find that the process, of issuing a warrant of arrest and committal of the Applicant to civil prison, in this case, was lawful. Accordingly, ground 1 fails.

Ground 2: The Learned Registrar erred in law and fact when he failed to

15 consider the serious illness of the Applicant while committing him to civil prison.

**Section 43 of the Civil Procedure Act** provides for release on the ground of illness, and it stipulates that:

*"(1) At any time after a warrant for the arrest of a judgment debtor* 20 *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 her if in its opinion he or she is not in a fit state of health to be detained in prison.*

- 25 *(3) Where a judgment debtor has been committed to prison, he or she may be 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; or* - 30 *(b) by the committing Court or the High Court on the ground of his or her suffering from any serious illness.*

The Learned trial Registrar in his proceedings on 31st October, 2024 observed that;

5 "*On that ground of sickness, there is no medical form to prove sickness and the Court has also seen the judgment debtor though he looks old his condition as per now is not bad to be managed by the prison."*

Nakimuli Joan, in an affidavit in support of the application, averred that 10 the Court was duty bound to investigate the sickness of the Applicant, whom she averred was sickly and had documentary evidence on his phone that needed to be uploaded, but due to the sudden nature of his arrest, he needed time to produce them. Considering the fact that the Court issued more than one Notice to show cause why execution should not issue, to

- 15 which the Applicant's Counsel and himself were duly served, the argument that the Applicant was arrested suddenly and thus he could not produce the medical forms does not hold because not only is it trite that he who alleges must prove to which the Applicant did not provide evidence but also the medical forms adduced in this application, annexure **"A"** attached - 20 to the affidavit in support, pre-date 31st October, 2024 and therefore the Applicant could have brought his medical condition to the attention of the Court during any of the days stated in the Notices to show cause, which he did not do.

Therefore, according to **Section 43(1) of the Civil Procedure Act**, before 25 the committal, I agree with the Learned trial Registrar that he did not have sufficient information or any evidence to rely on so as to cancel the warrant of arrest due to sickness, and as such, there was no error in committing the Applicant to a civil prison.

Further, Counsel for the Applicant's submission that the health of the 30 Applicant is extremely fragile is not supported by any evidence to show his

5 current health condition after committal to civil prison to warrant a release from civil prison as per **Section 43(3)(b) of the Civil Procedure Act.**

In the circumstances, ground 2 also fails.

Accordingly, this argument also has no merit.

The Applicant also argued this appeal on grounds that he was elderly (66 years) and not fit for prison. However, the Applicant did not prove that he 10 is not fit for prison, given the circumstances. I have also taken note of the fact that the Applicant was committed to prison for six months on 31st October, 2024 which is almost four months now since the committal.

In the premises, this appeal fails, and the order of **His Worship Okumu**

15 **Jude Muwone**, the Learned Assistant Registrar in *Execution Misc. Application No. 25 of 2023* committing the Applicant to a civil prison for six months, delivered on 31st October, 2024, is hereby upheld. Given the facts of the matter, no order is made as to costs.

I so order.

20 Dated, signed and delivered electronically via ECCMIS this **27th** day of **February, 2025.**

Patience T. E. Rubagumya

**JUDGE**

25 27/02/2025

6:45am