(COURT OF APPEAL)*

BABIKER ABDO v. HAFIZ ZAKHARI

AC-REV-427-1966

Principles

·  Civil Procedure—Judgment debt-_Imprisonment for non-payment—Civil Justice Ordinance. s. 198 (2) (a)—Operative after decree has been passed and judgment debtor refuses or neglects to pay when he has means to pay

·  Criminal Law—Fraudulent or dishonest dealing with property to prevent its application according to law—Penal Code, s. 18 with property before civil proceedings are instituted comes within this section

(I) Before sending a judgment debtor to prison for non-payment of money in execution under Civil Justice Ordinance, s. 198 (2) (a), it must be proved that a judgment debtor, after a decree has been passed against him, refuses or neglects to pay wholly or in part the decretal debt when he has means to pay.
(ii) A person who deals dishonestly with his property before civil proceedings are instituted against him in order to obstruct the execution of a decree which he anticipated would be passed against him, may be prosecuted under Penal Code, s. 18

Judgment

Advocate: Mubarak Bannaga . . . . . . . . . . . . . . . . . . . . . .for applicant

El Fatih Awouda J. April 9, 1967: —Applicant is a judgment debtor in Sennar EX-4-I966 following a money decree in its CS- in the sum of £S.508.430m/ms. including costs of execution. It seems that shortly before institution of the suit during the court vacation, certain negotiations were held wherein it was suggested that applicant should pay £S.225.000m/ms. in three installments in full satisfaction of the debt and he was made to sign a document to that effect. Respondent denied having taken part in those negotiations and further denied the terms of that proposed scheme. No payment, however, had been made towards that arrangement. On October 11, 1965, i.e., five days before the end of the court vacation applicant transferred ownership of his house at Suki to his minor son in consideration of a meagre sum of £S.97.500m/ms. On October 19, 1965, respondent brought his action against applicant which culminated in the decree the subject matter of the execution. On failure to pay the whole execution debt and in the absence of other saleable property belonging to applicant the learned District Judge committed applicant to prison for six months after having examined him under Civil Justice Ordinance. s. 198. It is not clear under which paragraph of the section he made that order. On revision therefrom, His Honour the Province judge rightly decided that as the transfer of the house was effected before institution of the suit applicant could not be dealt with under paragraph (c) or section 198 (2); but, he says, as applicant had before institution of the suit offered to pay £S.225.000m/ms. and did not pay it this meant that he had had the means of paying that sum but refused or neglected to pay it and that he should therefore pay it or else be imprisoned for six months, treating the matter under para graph (a) of subsection (2). Applicant was actually sent to prison when the application for revision from the order of the Province Judge was preferred to this court.

I think the learned Province Judge had erred with regard to the application of the law. Paragraph (a) does not operate until after judgment has been passed and remained wholly or in part unsatisfied. This is sufficiently clear from the wording of the paragraph itself when it says “ that the judgment debtor has refused or neglected to pay the AMOUNT of the DECREE . . .. ‘’ and an amount of a decree cannot be known until after the decree has been passed. The refusal or neglect to pay therefore must be shown on examination of the judgment debtor to have taken place subsequent to the issue of the decree.

Transfer of ownership of the house by applicant to his minor son in the circumstances in which that transference had been effected was evidently made on a fictitious sale for the purpose of obstructing the execution of the decree, which he anticipated would be passed against him. It would be proper in the circumstances to deal with him under Penal Code, S. i8 This, of course, will not restrict the power of the court to deal with him under Civil justice Ordinance, S. 198, as and when any of those situations arise.

This application is allowed without an order as to costs and the order of His Honour the Province Judge as well as that of the learned District Judge are hereby set aside.

Osman El Tayeb J. April 9, 1967: —I agree.