Wakilii

In Re - Mohamed Bux and Son ((Bankruptcy Cause No. 29-1933.))

East African Court of Appeal · [1934] EACA 19 · 1934 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by trustee in bankruptcy for costs against two persons who wilfully refused to attend examination under subpoena
Decision
Application for costs against examinees dismissed as premature

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that whether a person summoned under section 27 of the Bankruptcy Ordinance 1930 is a mere witness not liable for costs depends on the facts of each case. Costs of examination usually depend on whether the result is recovery of something for the estate or successful resistance to a claim. Where no further proceedings followed as a direct result of the examination, the application for costs against examinees who wilfully refused to attend was premature and refused.

Outcome

Application for costs against examinees dismissed as premature

Facts

A trustee in bankruptcy applied for costs thrown away by the wilful refusal of two persons to attend on subpoena to be examined under section 27 of the Bankruptcy Ordinance 1930. The two persons had eventually to be arrested and brought to Nairobi to be examined. Their wilful refusal had caused the trustee extra expenditure. The examination was lengthy and directed to show that the examinees had dealings with the debtor's property. The examinees submitted that no order for costs could be made against them as they were merely witnesses.

Issues

  1. Whether an order for costs can be made against two persons who wilfully refused to attend on subpoena to be examined as witnesses under section 27 of the Bankruptcy Ordinance 1930.
  2. Whether persons summoned under section 27 are mere witnesses not liable for costs or fall within categories capable of receiving or being liable to pay costs.

Orders

  • Application for costs refused.
  • Application ruled premature.

Rules and key headnotes

Bankruptcy — Examination of Witnesses — Status and Liability for Costs
A person summoned under section 27 of the Bankruptcy Ordinance 1930 is in the first instance treated as a witness of the Court, not as a witness called by a litigant party, and although the Official Receiver or trustee may put questions, the conduct of the examination rests with the Court.
Bankruptcy — Costs of Examination — Principles for Award
The costs of an examination under section 27 of the Bankruptcy Ordinance 1930 usually depend upon whether the result, immediate or proximate, is either the recovery of something for the benefit of the estate or the successful resistance to some claim made on behalf of the estate.
Bankruptcy — Costs — Liability of Person Summoned
Whether a person summoned under section 27 of the Bankruptcy Ordinance 1930 is a mere witness not liable for costs or falls within categories capable of receiving or being liable to pay costs depends upon the facts in each case.
Bankruptcy — Costs — Premature Application
Where no further proceedings are shown to have followed as a direct result of anything disclosed or discovered in the course of an examination under section 27 of the Bankruptcy Ordinance 1930, an application for costs against examinees who wilfully refused to attend is premature.

Legislation cited (1)

  • Bankruptcy Ordinance 1930 s.27

Cases cited (3)

  • Ex parte Waddell (6 Ch. D. 328)
  • In re Appleton, French and Scrafton, Ltd. (1905) 1 Ch. 749
  • Babu Ram and Son in re Kirparam and Sons v Official Receiver (Civil Appeal No. 3 of 1931)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

In Re - Mohamed Bux and Son ((Bankruptcy Cause No. 29-1933.)) [1934] EACA 19 (1 January 1934)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.