THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[COMMERCIAL DIVISION]

MISC. APP No. 956 OF 2015

(Arising Out Of HCCS No.704 Of 2015)

1. CITY ALUMINIUM AND GLASS SERVICES LTD
2. ONYANGO OKETCH JOHN               :::::::::::::::::::::::::::::  APPLICANTS
3. OGOT JOHN RODGERS (R.I.P)

        ECOBANK UGANDA LIMITED  ::::::::::::::::::::::::::::::::::::  RESPONDENT

BEFORE: HON. MR. JUSTICE B. KAINAMURA

RULING

This ruling arises from the defendants/applicants claim that they are unable to pay court fees in respect their defence and counter claim for the recovery of UGX 65,428,261,750 in HCCS No. 704 of 2015.

The applicants state that the above matter is before Court, having duly filed their defence with fees paid but they wish to counter claim for the recovery of UGX 65,428,261,750/= against the plaintiff/respondents but due to the deliberate negligent conduct of the said plaintiff/respondents, the defendants/applicants find themselves unable to meet the filing fees required for the counter claim and hereby seek a declaration that the applicants/defendants be declared paupers.

The grounds for this application are contained in the applicant’s affidavit and briefly are;

1. That the applicants are ready and prepared to defend and counterclaim against the plaintiff in HCCS 704 of 2015.
2. That it is an enshrined natural and constitutional right to defend oneself and file lawful claim against any defaulter irrespective of one’s financial capabilities.
3. That the capabilities of the applicants to raise the requisite filling fees have been deliberately incapacitated by the unlawful negligent conduct of the plaintiff in HCCS 704 of 2015 the respondent in Misc. Application No. 956 0f 2015.

APPLICANTS SUBMISSIONS

The applicants who represented themselves relying on the above grounds averred that they were financially sound and stable, which was one of the grounds upon which the respondent/plaintiff considered in offering the 1^stapplicant the loan facility as a result of the thorough analysis of its audited accounts report.

The applicants went on to aver that the applicants pauperism is the direct consequence of the respondents deliberate and negligent conduct namely but not limited to;

1. Breach of contracts
2. Unlawful confiscation of the applicants trading stock worth UGX 750,000,000/= and not crediting it to the account of the 1^st applicant, that is;

1. Stock in situ list also supported by its balance sheet position in the audit report.
2. Packing list 1 of the imported consignment.
3. Packing list 11of the imported consignment.

1. Unlawful confiscation of the applicant’s cash that is.

1. UGX 30,000,000/= in the 1^stapplicant’s current account.

1. Unlawful confiscation of the applicants cash income from its trading and contractual clients by way of undated cheques and other means in which UGX 175,606,000/= were to the applicants.
2. That the respondents denied the applicants access and control of their operational accounts with them by which act the applicants became financially incapacitated.
3. Malicious posting of wrong information in the 1^st applicants Credit Rating (CRB) deliberately intended to deny the applicants access to financial aid from financial institutions, organizations, individuals worldwide.
4. That by vitiating the loan contract of USD 150,000 duly executed among the parties, the respondent became a factor in the applicants financial woes by which the respondent desires to take advantage of.

The applicants further contend that as a result of the unlawful negligent conduct of the respondent mentioned herein above; the applicants were deliberately incapacitated financially so as to intentionally deny them legal filing capabilities and thus it’s the applicant prayer that this application be allowed with costs against the respondents.

RESPONDENT’S SUBMISSIONS

Counsel for the respondents in reply submitted that under Order 33 of the Civil Procedure Rules rule 1(2) thereof defines a pauper as such person not possessed of sufficient means to enable him or her to pay the fee prescribed for the filing of the action. Further under rule 5(1) (b) and (d) a pauper application will be rejected where the applicant is not a pauper or where the applicant’s allegations do not show a cause of action.

Counsel argued that the applicants application should fall under Order 33 rule 5(1) (b) or (d) of the Civil Procedure Rules and the respondents contend that the applicant has not proved that fact.

Counsel relied on the case of Mulindwa George William Vs Kisubika Joseph, Civil Application 28 of 2014 where court relying on other cases such as Alex Mabubu and HanneileDuuehage (Namibia Supreme Court) and Milly Masembe Vs Sugar Corporation stated;

1. That the prayer sought herein is not of a simple nature, for it calls for the exercise of the courts discretion which discretion is premised to be based on some reasonable basis in fact and in law to warrant the making of the order.
2. That not any person is to apply to proceed in a suit as a pauper, only the poor are allowed. However given the equality guaranteed by the constitution, a balance must be struck between the interests of the poor indigent and the interest of those who seek a just and fair adjudication of their disputes.
3. That the onus lies squarely on the applicant to candidly and in extreme openness reveal all about his status to the court. Failure to disclose in its strictest sense would lead to the dismissal of the application.
4. And finally the burden of proof that one is entitled to sue as a pauper is extremely high.

Counsel submitted that court in further application of the above laid up principles in the facts of the case at page 5 enunciated that;

“………… apart from merely stating that he has no job or satiable source of income, the applicant has not made any effort to substantiate his statement by making a full disclosure of his financial position. He may well have no job or business, but that does not in itself mean that he is a pauper going by the above definition. He could have assets such as real estate or vehicles.”

Counsel for the respondents averred that the applicant only alleged that his financial problems were as a result of the respondent’s behaviour and that what is required to fall under Order 33 is a candid demonstration of their inability to pay court fees and that the cause is irrelevant. Furthermore counsel alluding to the various authorities, argued that the applicant must prove that he has no assets that he could dispose of to pay fees, that the affidavit of the applicants does not state whether he has any assets or properties or whether they have been sold since.

 Counsel further submitted that the said application falls short of the standard required under Order 33 rule 5(1)(a) of the CPR as it has not been presented in the proper format.

Counsel lastly submitted that court take a cautious look at the merits of the claim, examining the applicants proposed counterclaim as one would be entitled to think that he is engaging in a fishing expedition due to the fact that his claims originally began with UGX 10 billion and end ups as UGX 65 billion in a space of two years without any explanation.

It was the respondent’s further submission that the applicant bears no reasonable claim and that the failure to pay the court fees tantamounts to a waste of courts time and as a result he should be ordered to pay the filing fees for the defence and for the counterclaim.

RULING

This application was brought by the applicants for a declaration that as a result of the actions of the respondents the applicant cannot pay legal fees in so far as HCCS 704 of 2015 and Misc. Application No. 956 0f 2015 are concerned hence the prayer for court to declare the applicant as a pauper in line with Order 33 of the CPR, thereby eliminating the condition to furnish filling fees so as to file the counterclaim.

Order 33 rule 1(2) of the CPR provides for a pauper as such person not possessed with sufficient means to enable him/herto pay the prescribed fees for filling the court action.

As submitted by the respondents, Order 33 rule 5(1) (b) and (d) CPR provides that a pauper application will be rejected where the applicant is not a pauper or where the applicant’s allegations do not show a cause of action.

 As is the rule of evidence under Section 101 of the Evidence Act, ‘he who alleges must prove’ accordingly the onus is on the applicant to prove their inability to pay the fees prescribed for the fling of the action. Such evidence should be strong. The principles to consider in an application of this nature are now settled (see cases of Mulindwa Vs Kisubika supra).

In my view, the applicants were required to prove to court that the 1^st applicant is a legal entity without any property whatsoever. Further that the 2^nd applicant is equally without any property or means to raise the requisite filling fees.  

It’s clear a person is a pauper when he or she is not possessed of sufficient means to enable him to pay the fee prescribed by law for their suit, defence or counterclaim in such suit.

In Abdul Hannan Vs Salma Khanam (1974) 26 DLR 337 it was held;

“that the plaintiff petitioners solvency is the sole question to determine whether the plaintiff would be allowed to sue as forma pauperis.”

Further in Sailkupa Co-op Society Vs Jahangir (1957) 9 DLR 412 it was held that an application for leave to sue as a pauper must disclose all assets; want of bonafides will entail rejection.

In this application the applicant contends its financial problems were as aresult of the respondent’s behaviour. However the applicants through the affidavit of Onyango Oketch John have not proved the principles enshrined under Order 33 of the CPR and the decided cases set out above.

The applicants should have demonstrated that they have no assets they could dispose off to pay fees. All they allege is that by action of the respondent- which as a matter of fact is yet to be determined by court- they were unable to raise the requisite filling fees.

In my view, the applicants merely alleged that they are paupers and failed to demonstrate the same, to court squarely and candidly in extreme openness as they failed to furnish to court with the financial status of the company through submitting its financial statements, an assets portfolio or any other financial documents that would invariably demonstrate that the applicants are insolvent hence unable to pay the requisite court fees. Accordingly this application falls short of the standard required for court to grant the application.

In the result this application is dismissed with costs.

B. Kainamura

Judge

11.07.2018