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Rohindi Damji Sidra v Freny Damji Sidra and Others (Civil Appeal No. 60 of 1995)

Supreme Court · [1997] UGSC 29 · 1997 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a High Court ruling dismissing an application to review an order requiring the plaintiff to give security for costs.
Decision
Appeal dismissed; the order for security for costs and its refusal of review stand.

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Holding

The Supreme Court dismissed the appeal. A plaintiff ordinarily resident abroad is prima facie bound to give security for costs and, to escape it, must show substantial property within the jurisdiction of a fixed and permanent nature. The appellant's only asset was a contingent, unadministered share in her late brother's estate, which was speculative and not fixed property. Her temporary presence in Uganda did not exempt her, as she carried on no business in the jurisdiction. The merits of her will-challenge suit, instituted decades after probate and facing a limitation obstacle, were weak. Security was not used oppressively, and the reciprocal-enforcement argument failed for want of any statutory order applying the Act to India and any evidence of property there.

Facts

The appellant, resident in India, instituted High Court Civil Suit No. 591 of 1990 against the respondents seeking, among other things, to declare void an alleged will of her late father, whose probate had been granted to the first respondent in 1958. On the respondents' application, the High Court ordered the appellant to provide UGX 3,000,000 as security for costs. Her application to review that order was dismissed, and she appealed. The appellant claimed she held property in Uganda sufficient to meet any costs, namely an estimated share of about UGX 70,000,000 in the estate of her late brother, the third respondent, who had died intestate in 1993. That estate, however, was not yet administered; the second respondent had only obtained letters of administration in 1995, and other claimants had caveated and disputed entitlements. The appellant maintained her will-challenge suit was within time under the fraud provisions of the Limitation Act, having discovered the alleged forgery in 1989.

Issues

  1. Whether the appellant had substantial property of a fixed and permanent nature within the jurisdiction sufficient to relieve her, as a plaintiff resident abroad, of the obligation to give security for costs.
  2. Whether the appellant's temporary presence in Uganda for the purposes of her suit exempted her from giving security for costs.
  3. Whether the prospects of success of the appellant's suit warranted refusing security for costs.
  4. Whether the order for security for costs was being used oppressively to stifle the appellant's claim.
  5. Whether the reciprocal enforcement arrangement between Uganda and India removed the need for security for costs.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondents, both in the Supreme 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 substantial property within the jurisdiction of a fixed and permanent nature, not of a floating nature, available to satisfy a costs order.
Civil Procedure — Security for Costs — Speculative or Contingent Property
A contingent, unadministered share in a deceased person's estate is not property of a fixed and permanent nature within the jurisdiction and cannot displace an order for security for costs; such prospects may be worse than floating property.
Civil Procedure — Security for Costs — Temporary Presence in the Jurisdiction
A plaintiff's temporary presence within the jurisdiction for the purpose of prosecuting the suit does not exempt her from giving security for costs where she carries on no business within the jurisdiction.
Civil Procedure — Security for Costs — Relevance of the Merits of the Claim
The prospects of success of the plaintiff's suit are a relevant factor in deciding whether to order security for costs; weak prospects, such as where a challenge to a will is brought long after grant of probate and faces a limitation obstacle, support an order for security.
Civil Procedure — Security for Costs — Oppression and Poverty
An order for security for costs must not be used as a weapon of oppression to stifle a genuine claim, and mere poverty of a plaintiff is not by itself a ground for ordering security; inability to pay is considered only after the other relevant factors.
Civil Procedure — Security for Costs — Reciprocal Enforcement of Foreign Judgments
Reciprocal enforcement under the Foreign Judgments (Reciprocal Enforcement) Act assists a defendant only where a statutory order has been made applying the Act to the relevant country and there is evidence the plaintiff has property there; absent both, the arrangement does not remove the need for security for costs.

Legislation cited (9)

  • 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 (Cap.90) s.21
  • Limitation Act (Cap.90) s.26
  • Foreign Judgments (Reciprocal Enforcement) Act (Cap.48) s.3
  • Foreign Judgments (Reciprocal Enforcement) Act (Cap.48) s.9

Cases cited (8)

  • Ebrard v Gassier (1885) 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
  • Namboro v Kaala (1975) HCB 315
  • 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 T 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.