Wakilii

Mohamed v Lobo (Civil Appeal No. 3-1935.)

East African Court of Appeal · [1935] EACA 100 · 1935 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from order dismissing application to set aside bankruptcy notice
Decision
Application to set aside bankruptcy notice refused; appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A bankruptcy notice is valid if it claims the correct balance due after giving credit for payments on account of the judgment debt, even if it does not provide detailed particulars showing how the amount claimed is arrived at. The amount claimed must be presumed to accord with the judgment terms unless the debtor proves otherwise. A creditor may serve a bankruptcy notice for the balance in respect of which execution can issue.

Outcome

Application to set aside bankruptcy notice refused; appeal dismissed

Facts

Lobo obtained judgment against Jan Mohammed for Sh. 22,976 and costs on 15 September 1932. An order was made for instalments of Sh. 100 per month, which was subsequently rescinded. Lobo then served a bankruptcy notice under section 3(1)(g) of the Bankruptcy Ordinance 1930 claiming Sh. 21,548/68 with interest at 6% per annum from 17 January 1935. Jan Mohammed applied to set aside the bankruptcy notice on grounds that the amount claimed was incorrect and that execution had been stayed. The trial judge dismissed the application, finding the bankruptcy notice correct and that execution was not stayed after the instalment order was rescinded. Jan Mohammed appealed.

Issues

  1. Whether a bankruptcy notice is invalid if it shows only the balance due after giving credit for payments on account without setting out in detail how the amount claimed is arrived at.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Bankruptcy Practice — Bankruptcy Notice — Form and Content Requirements
A bankruptcy notice that claims the balance due after giving credit for payments on account of a judgment debt is valid even if it does not set out in detail how the amount claimed is arrived at, provided the amount claimed is correct and gives proper credit for payments made.
Bankruptcy Practice — Bankruptcy Notice — Burden of Proof
The amount claimed in a bankruptcy notice must be presumed to be in accordance with the terms of the judgment until the judgment debtor proves the contrary.
Bankruptcy Practice — Bankruptcy Notice — Execution and Payment
A creditor is not entitled to serve a bankruptcy notice in respect of the whole amount of a judgment debt where part has been paid, as execution cannot issue in respect of sums already paid; the notice must claim only the balance for which execution can issue.

Legislation cited (5)

  • Bankruptcy Ordinance 1930 s.3(1)(g)
  • Bankruptcy Ordinance 1930 s.101(2)
  • Bankruptcy Ordinance 1930 s.162
  • Bankruptcy Rules 1927 Appendix of Forms No. 5
  • Bankruptcy Rules 1927 Rule 143

Cases cited (8)

  • O.C.S. a debtor [1904] 2 KB 163
  • In re a debtor [1908] 2 KB 684
  • In re a judgment debtor [1908] 2 KB 474
  • In re Howes [1892] 2 QB 628
  • In re Child [1892] 2 QB 77
  • In re H.B. [1904] 1 KB 94
  • Ex parte Child [1892] 2 QB 77
  • In re Collier (8 Morrell's Bankruptcy Cases 83)

Full judgment

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

Mohamed v Lobo (Civil Appeal No. 3-1935.) [1935] EACA 100 (1 January 1935)
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.