Trustees, Muslim Association v Kampala City Council (Civil Application No. 147 of 2007)

Court of Appeal · [2008] UGCA 8 · 2008 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for security for costs and security for due performance of a decree, arising from a pending civil appeal

Decision

Application for security for costs and security for due performance dismissed with costs to the respondent

The full judgment

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Holding

The applicant sought security for costs and security for due performance of a decree against Kampala City Council in a pending appeal. The prayer for security for costs of the appeal was abandoned after counsel conceded the respondent could pay. On the remaining prayer for deposit of the decretal sum, the single Justice held that the supporting affidavit said nothing about the decretal amount or any inability to pay, and that a wealthy local authority possessing property worth billions of shillings could not be said to be incapable of paying the sum. The application lacked merit and was dismissed with costs to the respondent.

Facts

The applicant had obtained an award of shs.820,900,000 mesne profits plus interest and costs against Kampala City Council in Civil Suit No.999 of 2000. The Council appealed in Civil Appeal No.81 of 2005. The applicant brought a notice of motion seeking that the Council furnish security for costs in the High Court and in the Court of Appeal, supported by an affidavit of Yusuf Shabdin asserting the appeal had slim chances of success and that costs were unlikely to be paid. At the hearing, counsel amended the motion to seek a deposit of shs.810,000,000 as security for due performance of the decree, but abandoned the prayer for security for appeal costs after conceding the respondent could pay. No affidavit supported the assertion that the respondent could not pay the decretal sum. The Court noted that the respondent was a wealthy local authority owning property and income worth billions of shillings, then in the process of transfer to central government control.

Issues

Whether the respondent should be ordered to furnish security for costs of the pending appeal.
Whether the respondent should be ordered to deposit the decretal amount as security for due performance of the decree.
Whether an applicant seeking security for due performance must support the assertion by affidavit evidence of the respondent's inability to pay.

Orders

Application dismissed.
Costs of the application awarded to the respondent in any event.

Key headnotes

Civil Procedure — Security for Costs — Requirement of Affidavit Evidence Supporting Inability to Pay

A party seeking an order that an opponent furnish security for costs or for due performance of a decree must support the application with affidavit evidence establishing the asserted inability or unwillingness to pay; bare assertions made from the bar are insufficient.

Civil Procedure — Security for Costs — Solvent and Capable Respondent

An order for security for costs will not be granted where the respondent is a wealthy and capable entity, such as a local authority possessing substantial property and income, since there is no real risk that any costs or decree ultimately ordered will go unsatisfied.

Legislation cited (4)

Court of Appeal Rules r.2(2)
Court of Appeal Rules r.42(2)
Court of Appeal Rules r.43
Court of Appeal Rules r.105(3)

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.