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Damji v Damji & 2 Others (Civil Appeal 60 of 1995)

Supreme Court · [1997] UGSC 15 · 1997 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court against the High Court's dismissal of an application to review an order requiring the plaintiff to provide security for costs.
Decision
Appeal dismissed; the order requiring the appellant to provide security for costs upheld.

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Holding

The Supreme Court dismissed the appeal against the refusal to review an order requiring the appellant, a plaintiff resident in India, to provide security for costs. A plaintiff ordinarily resident abroad is prima facie bound to give security and, to escape it, must show substantial property within the jurisdiction of a fixed and permanent rather than floating nature. The appellant's only claimed asset was a speculative, unvested share in her late brother's unadministered estate, which was insufficient. Her temporary presence in Uganda did not exempt her (Ebrard v Gassier distinguished), her suit had poor prospects of success, the order was not oppressive, and the Foreign Judgements (Reciprocal Enforcement) Act did not assist as India had not been designated under it.

Facts

The appellant, resident in India, sued the respondents in the High Court seeking, among other things, a declaration that the will of her late father (whose probate had been granted to the first respondent's predecessor as executrix in 1958) was null and void. The respondents, as defendants, applied under Order 23 rule 1 of the Civil Procedure Rules for security for costs on the ground that the appellant lived abroad. Tsekooko J ordered her to deposit Shs.3 million as security. She did not appeal that order but instead applied to review it, claiming she had property in Uganda, namely a share in the estate of her late brother (the third respondent) who had died intestate in 1993. The estate had not yet been administered; letters of administration had only been obtained by the second respondent in 1995, and the appellant's entitlement was disputed and unvested. Mpagi-Bahigeine J dismissed the review application, finding the claimed property speculative and not of a fixed nature, and the appellant's suit unlikely to succeed. The appellant appealed to the Supreme Court.

Issues

  1. Whether the appellant possessed substantial property within the jurisdiction, of a fixed and permanent nature, sufficient to exempt her from giving security for costs.
  2. Whether the appellant's temporary presence in Uganda for the purpose of conducting her suit relieved her of the obligation to give security for costs.
  3. Whether the trial judge properly assessed the likelihood of success of the appellant's underlying suit in deciding the security application.
  4. Whether the order for security for costs was being used oppressively to stifle the appellant's claim and deny her access to court.
  5. Whether reciprocal enforcement arrangements between Uganda and India under the Foreign Judgements (Reciprocal Enforcement) Act dispensed with the need for security for costs.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents in this court and in the court below.

Key headnotes

Civil Procedure — Security for Costs — Plaintiff Resident Abroad
A plaintiff ordinarily resident outside the jurisdiction is prima facie bound to give security for costs, and to escape that obligation must show that he has substantial property within the jurisdiction of a fixed and permanent, not floating, nature that would be available to satisfy a costs order.
Civil Procedure — Security for Costs — Speculative and Unvested Property
An anticipated share in an unadministered estate, which is disputed and not yet vested, is too speculative to amount to fixed property within the jurisdiction and does not exempt a foreign plaintiff from giving security for costs.
Civil Procedure — Security for Costs — Temporary Presence in the Jurisdiction
A foreign plaintiff's temporary presence in the jurisdiction for the purpose of conducting the suit does not of itself relieve her of the obligation to give security for costs; the exception recognised in Ebrard v Gassier is confined to its own facts, where the plaintiff firm carried on business within the jurisdiction.
Civil Procedure — Security for Costs — Merits and Prospects of the Claim
The reasonable prospect of success of the plaintiff's case is a relevant factor a court takes into account in deciding whether to order security for costs against the plaintiff.
Civil Procedure — Security for Costs — Oppression and Access to Court
An order for security for costs must not be used oppressively to stifle a genuine claim or to deny a poor litigant access to court, but an order grounded on established principles to protect a defendant's legitimate interests is not oppressive.
Statutory Interpretation — Foreign Judgements (Reciprocal Enforcement) Act — Designation Requirement
Reciprocal enforcement of judgments dispenses with the need for security for costs only where the foreign country has been designated by statutory order under the Foreign Judgements (Reciprocal Enforcement) Act and there is evidence of the plaintiff's property there; absent any statutory order applying the Act to India, the reciprocal-enforcement argument fails.
Civil Procedure — Review — Appeal Against Refusal of Review
An appeal against a refusal to review must be founded on the law governing review, namely the discovery of new and important evidence or an error apparent on the face of the record, and cannot succeed where it is in substance an appeal against the original order which the appellant chose not to appeal.

Legislation cited (8)

  • Civil Procedure Rules O.23 r.1
  • Civil Procedure Rules O.42 r.1(2)
  • Civil Procedure Rules O.48 rr.1 and 2
  • Civil Procedure Act s.83
  • Civil Procedure Act s.101
  • Limitation Act s.21
  • Limitation Act s.26
  • Foreign Judgements (Reciprocal Enforcement) Act Cap.48 s.3

Cases cited (8)

  • Namboro v G.A. Kaala (1975) HCB 315
  • Ebrard v Gassier (1884) 28 Ch.D. 232
  • Kevorkian v Burney (No.2) [1937] 4 All E.R. 468
  • In re Apollinaris Company's Trade-Marks [1891] 1 Ch 1
  • Farrab Incorporated v Brian John Robson and Others (1957) E.A. 441
  • Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609
  • Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074
  • Vallabhdas Hirji Kapadia v Laxmidas (1960) EA 852
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.