Bank of Uganda v Nsereko and Ors (Civil Application 7 of 2002)

Supreme Court · [2002] UGSC 28 · 2002 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for security for costs in a pending Supreme Court appeal (Civil Appeal No. 1 of 2002)

Decision

Application for security for costs dismissed with costs to the respondents; appeal remains pending

The full judgment

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Holding

The applicant sought security for past costs awarded in the lower courts and further security for the costs of the respondents' pending appeal. Mulenga JSC held that, while the court has wide and virtually unfettered discretion under rule 100(3) to order security for costs, that discretion must be exercised judicially and the burden lies on the applicant to show that the circumstances justify the order. The applicant's mere lack of knowledge of the respondents' whereabouts or assets did not amount to evidence of inability to pay, and amounted to a fishing expedition. As no demand or recovery effort had been made and the appeal was not shown to be devoid of merit, the application was dismissed.

Facts

The respondents, former employees of the applicant bank, sued in the High Court to recover gratuity, insurance and pension money, with general damages, interest and costs. The High Court entered judgment for them. The applicant successfully appealed to the Court of Appeal, which set aside the High Court judgment and awarded costs in both courts to the applicant. The respondents then filed Civil Appeal No. 1 of 2002 in the Supreme Court. The applicant's bills of costs in the lower courts were taxed at shs.12,104,500/= and shs.60,441,000/= respectively. The applicant applied for security for those past costs and further security for the appeal costs, contending that the respondents' whereabouts were unknown and that they had no known assets sufficient to cover the costs. No demand for payment or execution proceedings had been initiated. The respondents offered, if security were ordered, more than 100 certificates of title already mortgaged to the applicant.

Issues

Whether a case had been made out for granting an order for security for past costs awarded in the lower courts and/or further security for the costs of the pending appeal.

Orders

Application dismissed.
Costs of the application to the respondents.

Key headnotes

Civil Procedure — Security for Costs — Burden of Proof

The burden lies on an applicant for security for costs to satisfy the court that the circumstances justify the order; a mere averment that the security already deposited is inadequate, or that costs awarded below remain unpaid, imposes no obligation on the court to grant the application.

Civil Procedure — Security for Costs — Court's Discretion

The court has a wide and virtually unfettered discretion under rule 100(3) of the Rules of the Supreme Court to order security for costs, but the discretion must be exercised judicially.

Civil Procedure — Security for Costs — Lack of Knowledge of Assets

An applicant's lack of knowledge of a respondent's whereabouts or assets does not amount to evidence of the respondent's inability to meet costs; substantial evidence of inability must be provided, and an application founded only on such lack of knowledge is a fishing expedition for which the relief of security is not intended.

Civil Procedure — Security for Costs — Impecuniosity Caused by Act Complained Of

Security for costs will not be ordered where the appellant's impecunious circumstances arose from the allegedly wrongful act complained of in the action, though a mere unsupported assertion to that effect carries little weight.

Legislation cited (1)

Rules of the Supreme Court r.100(3)

Cases cited (3)

Noormohamed v Patel (1960) E.A. 447
Lalji Gangji v Nathoo Vasanjee (1960) E.A. 315
Patel v American Express International Banking Corporation (Civil Appeal No. 9 of 1989)

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.