Case No.:

AC-REV-2 1-1957

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure—Civil Justice Ordinance. s. 191—Decree requiring instalment payment of debt illegal unless parties consent

·  Civil Procedure—Civil Justice Ordinance. s. 191 (c)—Body execution and imprisonment illegal unless there is disobedience of a court order or bad faith

A judgment was entered for respondent ordering applicant to pay his del to respondent in monthly instalments and to find a guarantor of payment. The instalment arrangement was- agreed to by both parties. Applicant failed to find a guarantor and body execution and imprisonment for two months were ordered
*court: Abu Rannat CJ. and M. I. El Nun.
against him. Applicant appealed on grounds that the body execution and imprisonment were illegal.
Held: (1) An order for payment of a judgment debt by instalments is not a process recognised by Civil Justice Ordinance. s. 191, and is therefore not legal unless this form of payment is agreed to by and between the parties;

(ii) because in failing to find a guarantor the judgment-debtor did not (a) wilfully disobey an order of the Court. or (b) act in bad faith, he is not guilty of such ‘bad conduct as permits punishment by body execution and imprisonment.

Judgment

(COURT OF APPEAL)*

MOHAMED AI-IMED ABDALLA v. KILANJI HAMCHAND A\ ANOTHER

AC-REV-2 1-1957

Advocates: Mohamid Yousef Mohamed ... for defendant-applicant

                            El Hag El Tahir Ahmed for plaintiffs-respondent

M. I. El Nur 1. January 18, 1958:—Applicant is a merchant of Port Lami, French Sudan. He used to buy his goods for his trade from the two respondents.

On December 2, 1957, applicant arrived at El Obeid and being indebted to the two respondents they instituted against him urgent CS-837 and 785-1957 and obtained decrees against him for £S.I,325.191M /MS and £S 989.918m /ms respectively .

On December 3. 1957, both respondents were allowed execution of their decrees, and on December 4. 1957, applicant was examined by the court as. his means to settle these execution debts. He said on oath that his place of business was at Port Lami. His whole capital was £S.7oo which constituted mainly of the goods he had on credit from respondents. That in May 1957 he promised to pay first respondent. Kilanji, £S50. per month in settlement of his debt but since then the market slackened a great deal and he found that he could not continue the payment of these instalments. He offered to settle the execution debts against him by paying £S.2o monthly instalments to each of the execution creditors.

After some discussion in court the learned Judge of the High Court executing the decrees ordered applicant (judgment-debtor) to pay a monthly instalment of £S35. to first respondent and £S.25 to second respondent. The learned judge further ordered that payment of the said instalments should commence from December 1 1957, and that the judgment-debtor (applicant) should produce a guarantor to guarantee the payment of these instalments as they fell due, failing which (the production of the guarantor) judgment-debtor should be imprisoned for two months.

Applicant having said he could find no guarantor the learned ‘Judge of the High Court ordered that he should therefore be imprisoned for two months.

Later on the same day, on application of judgment-debtor (applicant) the court postponed the issue of the warrant of imprisonment till the following day to enable judgment-debtor to find the required guarantor

On the following day, December 5. 1957. judgment-debtor appeared in

court and said he had failed to find the required guarantor. The learned Judge of the High Court then made the following order:

(1) I felt that it is very harsh to insist on judgment-debtor bringing a guarantor. He is a merchant, and decree holders can proceed with execution against him while he is in French Sudan.

(2) I am unable to vary my previous order. -

 (3) Therefore I shall stay my order of imprisonment pending result of revision by judgment-debtor.

On December 12, 1957. judgment-debtor applied through his advocate, Mohamed Yousef, to the Chief justice for the revision of the order of imprisonment for two months unless he produced a guarantor for the payment of the monthly instalments amounting to £S.6o in the two executions.

The grounds of appeal put forward by the learned advocates were briefly:

(a) The Civil Justice Ordinance, S. 191 (c), empowers the court to arrest and detain a judgment-debtor as a mode of executing a decree against him only if the court is satisfied that such ‘judgment-debtor has the means of paying but refuses to do so.

(b) Further that the court on ordering judgment-debtor to pay £S.6o monthly instalments ordered that he should bring a guarantor for that payment failing which he should go to prison for two months. This order is too hard on judgment-debtor who cannot compel others to guarantee him.

These applications having been adjourned to the Court of Appeal a copy of the memorandum of appeal was served on respondents who were asked to reply in writing to enable the court to decide the applications on the written statements of the parties under Civil Justice Ordinance, S. 177. and save them the expenses of coming to Khartoum.

On January 12, 1958. the learned advocate for the two respondents sent in his replies whereby he contested the applications for revision on the following grounds:

(a) Applicant (judgment-debtor) worked at Port Lami which he was about to leave and thereby make it difficult to execute the decree against him particularly because he has no property in the Sudan besides his house at Eilafoon. For this reason respondents applied under Civil Justice Ordinance. S. 191 (c). for the simultaneous execution both against his property and his person by his arrest and detention in prison

b) Consequent on that application the learned Judge of the High Court ordered judgment-debtor to settle the said execution debts by paying £S.6o per month of which £S35. were to be paid to first

respondent and £S.25 to second respondent, the learned Judge of the High Court ordered judgment-debtor to bring a. guarantor for payment of these instalments failing which he should go to prison for two months.

(C) Civil Justice Ordinance, 5. 291 (C), empowers the court to execute the said decrees both against the property and, person of judgment. debtor. So the order of imprisonment applied against is quite in order and should not be upset.

On the outset we should like to point out that an order for payment of a judgment debt by instalments, unless such instalments are agreed upon or consented to by both parties, is not one of the processes of execution recognised by the Civil Justice Ordinance. In the present case though the record of execution does not show it, we take it that both parties agreed upon, and consented to the instalments ordered by the court; i.e., £S35. monthly to first respondent and £S.2S to second respondent. Neither the advocate for applicant in his application for revision nor the advocates for the two respondents in his replies, said there was no such agreement by the parties as to the instalments ordered by the court.

As regards the order of the court that judgment-debtor (applicant) should go to jail for two months unless he brought a guarantor to guarantee the payment of these instalments as and when....they fell due, the learned Judge of the High Court himself had after thought realised that the said order was harsh on judgment-debtor and stayed it and gave Judgment-debtor an opportunity to appeal against it. Hence these applications for Revision .

In our opinion the learned Judge of the High Court was quite correct in his latter view, It is neither the practice nor the law to imprison a judgment-debtor merely because he failed to find, a guarantor for the payment of his debts.

 We agree with the learned advocate for respondents that under Civil Justice Ordinance, s. 191 (c), the court has discretion to execute the decree simultaneously against his property and person but this section should read with Civil Justice Ordinance, s. 198, which entails that the power in section 191 (c) should not be used lightly. In the words of Sir Charles Cummings in commenting on Civil Justice Ordinance, s. 198:

“No honest judgment-debtor should ‘be imprisoned. On4 those who commit a contempt of court by wilfully refusing to obey its decree, or being in bad faith or in fraud of the court or creditors, or evading the power of the-court.

“It is essentially a punishment for bad conduct not a screw to be put on for payment.”

The imprisonment ordered by the court in the present case was not because judgment wilfully disobeyed the order of the court nor

because he was found to be in bad faith. It was simply because he failed to find a guarantor to guarantee the payment of the instalments consented to by both parties and ordered by the court. This failure cannot be said to be a wilful disobedience of the order of the court.

Further under Civil Justice Ordinance, s. 191 (c), a judgment-debtor cannot be both ordered to pay instalments and at the same time imprisoned. An order to settle by instalments means that the debtor is given time to settle his debt. He can only be sent to prison if be a wilfull  neglects or refuses to obey that order.

It is clear from all the above that the order by ‘the learned Judge of the High Court to judgment-debtor to pay a monthly instalment of £S.6o in settlement of both execution debts was correct but the order that judgment-debtor should go to jail for two months unless he brought a guarantor to secure the payment of the instalments was not, and it is, therefore, hereby cancelled.

We make no order as to costs.

M. A. Abu Rannat C.J. January 18. I958 :—l concur