Namoda v The New Vision Printing Publishers Corporation (Miscellaneous Application 27 of 1995) [1996] UGHC 66 (18 September 1996)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

MISCELLANEOUS APPLICATION NO. 27 OF 1995. (FROM H. C. C. S. NO. J OF 1995).

LAWRENCE NAMODA APPLICANT RESPONDENT. BEFORE: THE MON. MR. JUSTICE S. G. ENGVAU VERSUS THE NEW VISION PRINTING AND PUBLISHING COBOPERATION ...

RULING:

In this applicatian, this Ceurt is saved under seotien 101 Civil Pracedure Act by Netice ef Mstian supperted by an affidavit ta exercise its inherent jurisdictien in the interest ef justice ta grant the applicant leave ta pay by instalsents the decretal ameunt plus taxed casts ef the suit.

In M. C. C. S. Na. J af 1995\* judgment was delivered against the applicant en 10.2.95\* ^be decretal amaunt was U. She 19f377el55/- plus taxed casts in the sum af U. She 1,667,069/05\*

At the hearing af this applicatian, a sum af J.50m/- anly was allegedly paid but a Warrant ta Arrest the applicant te be cemmitted ta civil prisan was issued but expired en 18.12.95\* By then the indebtedness had matured by abeut 10 Henths eld since judgment was passed against the applicant.

If the applicatian is granted, the applicant is prepared ta depesit regularly a sum ef U. 8hs. 500,000/- fartnightly. He put that request ta the decree halder/respandent threugh their advecates but was instead asked te pay initially 10s/~ which the applicant feund te harsh.

It is stated that the applicant is ready and willing te pay that debt but due te financial censtraint and sickness he was unable te raise that ameunt.

/\*

It was submitted that to commit the applicant to civil prison would not be in the interest of the decree holder or the applicant as indebtedness would increase.

2

**decretal amount te be paid by instalments: Ltd., v. Salaeh Abdulla, (1959) E. A.

260. Learned Counsel, Mr. Owori for the applicant, further argued that no fraud was raised against the judgment debtor in his dealings with the decree holder. There is therefore sufficient cause for the Keshavji Jethabhai & Bros**

In conclusion, the learned Counsel conceded that the High Court may increase the amount for payment by instalments: A. Majabali Alidina Restulla Alidina & Aner, (19&1) E. A. 5&5 an^ that section 101 C. P. A. gives court wider power to that effect.

The learned Counsel for the respondents, Mr. Wanders, rightly pointed out that the applicant by his conduct cannot stand by his words and should not benefit by this application: Standard Chartered Bank v. Cloud 10 Ltd., (1988 - 90) MCB.84.

In an affidavit in reply, depened an 14.12.95 at paragraph 5, it is stated:

TtThat by a letter dated 24.4.95 addressed to the District Registrar and copied to the corporation's lawyers, the applicant informed the Registrar that he was willing te settle the decretal amount by way of two instalments to rescue Ms house from sale and that he needed only two weeks to settle the debt. - " (Ann. "C").

In paragraph 6 that affidavit, it was deponed to the effect: "That thia letter was preceded by another letter to the corporation's lawyers proposing payment of the decretal bus between 4 and *6* months" • (Ann. "D").

Paragraph 8 states: "That by a letter dated 4.7.95i the applicant pledged to make minimum monthly payment of shs Jm/-" • (Ann. "F' but all in vain.

/J

- 3 -

In paragraph 10 of the affidavit reads:

"That by a letter dated 1.11.95 to the corporation's lawyers the applicant made an initial deposit of Shs 500,000/- and promised to make another preferably within one month - (Ann. "G"). However, surprisingly within the one month the applicant decided to file this application instead of paying the money.

Judging from the applicant's conduct herein stated above, his pledge to pay She 500,000/- per fortnight might as well meet the same fate. The situation might even worsen if this court increased higher amount of payment beyond the 1s/- monthly as it had happened before.

Bona fides of the applicant are such that he is ist ready to pay his debt before or during the hearing of this application but after sometime next year (1996). An order of this court should not unnocesarily prejudice the decree-holder. Not to pay the decretal amount in full for over 1# years would be detremental to the decroeholder. Takofor instance that J.5'MA\*f the debt is is so far paid, leaving a balance of over 18m/- and it is pledged that payment shall be 1m/- per month and that would cover a period of about 18 months to pay the debt in full when the present currency might have lost its value.

In an application of this mature, there must and ought to be sufficient cause for it. In the instant case, the applicant allegedly claimed sickness which unabled him to pay his debt. Unfortunately, the applicant failed to date to produce medical evidence even when his Counsel promised he would produce some medical forms in the afternoon of the day when this application was hoard. In the absence of such medical forms or evidence to indicate the nature and duration of sickness. I'm inclined to believe that the issue of sickness is an afterthought.

Similarly, mere statement ef financial constraints without evidence disclosing details of such constraints in no sufficient cause to this application to warrant payment of the debt by instalments.

In yet another turn, Mr. Wandera again rightly pointed out that application to pay by instalment should be brought under 0.18 r. U CPR by Chasber Summons. This application is by Notice of Motion. In Namukasa v. Bukya, (196?) E. A. 433, application was brought by Chasber Summons and a preliminary objection was that it should be by Notice of Motion. The application was struck out and an attempt to invoke section 101 C. P. A. was refused because the proceedings were not properly brought before the court. That decision falls squarely with AU the conners of the instant application.

Accordingly, with due respect, I de net agree with the learned Counsel for the applicant that this application is properly brought before thia court and as such de hdreof struck it out with costs to the respondent. I so order.

Before I take leave of this ruling, it is to be noted that it delayed because I was sent on Criminal Session at Soroti and thereafter went on leave and before my leave expired my transfer took immediate effect. Sorry.

> S. G. ENGWAU JUDGE 18.9.96

Orderi District Registrar Mbale to deliver this Ruling after service notice to the parties.

> S. G. ENGWAU JUDGE 26.9.96.