THE Director of one of Electronic Fiscal Devices (EFD) Supplier Company-Bolsto Solutions Limited, Ms Farhia Abdullah Noor, has lost a bid challenging her arrest and detention for six months as a civil prisoner for failure to satisfy court’s decree.
This followed the decision of the Court of Appeal delivered recently to “strike out with costs” an application for revision, Ms Noor had lodged to oppose an order issued by the High Court’s Commercial Division over payments of 160,000 US dollars in favour of Advatech Office Supplies Limited.
Justices Augustine Mwarija, Winfrida Korosso and Barke Sahel ruled against Ms Noor, the applicant, after holding that she should have appealed with permission of either the Court of Appeal or High Court against the decision sought to be challenged instead of filling the application for revision.
“On the basis of these findings, the application is glaringly incompetent. In the event, we hereby strike out the application with costs,” the justices ruled in favour of Advatech Office Supplies Limited, the respondent, who was represented by Advocate Ndurumah Mjembe assisted by Mr David Ndossi.
As a result of the court’s ruling, the applicant would be required to either pay the amount in question to evade the custody sentence or be taken to prison to start serving her jail term as civil prisoner as ordered by High Court Judge Amir Mruma on May 3, 2017.
Expounding further on their ruling, the justices of the appeals court also found to be lacking merits on the argument that the grounds raised by the applicant in support of the application could only be entertained in an application for revision.
They pointed out that invocation of the Court’s revisional jurisdiction is not dependant on the nature of the grounds upon, which a party seeks to challenge a decision or order of the High Court.
According to them, the Court’s power of revision may be resorted to only, where there is no right of appeal or where such right exists but has been blocked by a judicial process.
“A party may also invoke the revisional jurisdiction of the Court where, although he has a right of appeal, sufficient reason amounting to exceptional circumstance exists or where a person was not a party to the relevant proceedings of the High Court,” they said.
The justices said that since in the case, the ruling was in relation to execution of the decree, it was, therefore, not appealable as of right, but appealable with permission of the High Court or of the Court of Appeal under section 5 (1) © of the Appellate Jurisdiction Act.
“Clearly therefore, because the applicant had a right of appeal, she should not have invoked the revisional jurisdiction of the Court. We are, with respect, unable to agree with Mr. (Deogratius) Kiritta’s argument that the errors complained of by the applicant cannot be resolved in an appeal,” they said.
It all started when the respondent moved to the High Court’s Commercial Division for an order of arrest and detention of the applicant as a civil prisoner.
The order was sought with a view of compelling her, in her capacity as the Director of Bolsto Solutions Limited, to satisfy the decree passed by the Court.
The decree arose from a default judgment entered in favour of the respondent against Bolsto Solutions Limited for the latter’s to file written statement of defence into a commercial dispute that had been filed before the court.
Having obtained the decree, the respondent applied for execution but it became difficult to serve the Bolsto Solutions Limited.
As a result, the respondent sought and obtained an order requiring the applicant to appear and show cause why, being the Director should not be detained as a civil prisoner.
On June 15, 2016, after having heard counsel for both parties, the High Court ordered that the applicant be arrested and detained in prison for six months as a civil prisoner unless she satisfied the decree.