Bank of Uganda v Joseph Nsereko and Others (Civil Application No.7 of 2002)

Supreme Court · [2002] UGSC 55 · 2002 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for an order that the respondents provide security for costs already awarded in the lower courts and further security for the costs of a pending appeal to the Supreme Court.

Decision

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

The full judgment

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Holding

On an application under rule 100(3) for security for past costs and further security for the costs of a pending appeal, the burden lies on the applicant to satisfy the court that the circumstances justify the order. The applicant's mere averment that it did not know the respondents' whereabouts or whether they held valuable assets was not evidence of the respondents' inability to pay; lack of knowledge cannot supply that proof, and the applicant appeared to be on a fishing expedition. The applicant had not attempted to recover the costs, and the pending appeal was not shown to be devoid of merit. The court declined to exercise its wide discretion in the applicant's favour and dismissed the application with costs.

Facts

The respondents, former employees of the applicant Bank, sued in the High Court for recovery of gratuity, insurance and pension money, alternatively seeking a declaration of entitlement to pension benefits, plus 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 filed bills of costs in the lower courts, which were taxed at about shs.12,104,500 and shs.60,441,000 respectively, and the statutory security of shs.400,000 had been deposited for the Supreme Court appeal. Asserting that the respondents' whereabouts and assets were unknown and that the second appeal's costs were likely to exceed shs.100 million, the applicant sought security for costs. No demand for payment had been made and no execution had been attempted.

Issues

Whether the applicant made out a case for an order that the respondents provide security for the costs already awarded in the lower courts and further security for the costs of the pending appeal.
Whether the applicant's lack of knowledge of the respondents' whereabouts and assets, without more, was sufficient evidence of the respondents' inability to meet the costs.

Orders

Application dismissed.
Costs of the application awarded to the respondents.

Key headnotes

Civil Procedure — Security for Costs — Burden of Proof on Applicant

An applicant for security for costs bears the burden of satisfying the court that the circumstances justify the order; merely averring that 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 — Evidence of Respondent's Inability to Pay

The applicant's lack of knowledge of the respondents' whereabouts or assets is not evidence of the respondents' inability to meet costs; an application founded on such lack of knowledge, used to compel the respondents to disclose their whereabouts and assets, is a fishing expedition for which the relief of security for costs is not intended.

Civil Procedure — Security for Costs — Exercise of Discretion under Rule 100(3)

The court's discretion to order security for costs under rule 100(3) is very wide and virtually unfettered, the only fetter being that it must be exercised judicially; an unexplained haste to obtain security while an appeal of arguable merit is pending, and a failure to attempt recovery of the costs, are legitimate considerations capable of tilting the balance against the order.

Civil Procedure — Security for Costs — Impecuniosity Arising from Act Complained Of

Security for costs will not be ordered where the respondent's impecuniosity arose from the wrongful act complained of in the action, but a mere assertion to that effect, unsupported by detail, will carry little weight.

Legislation cited (1)

Rules of the Supreme Court r.100(3)

Cases cited (3)

Noormohamed v Patel (1960) EA 447
Lalji Gangji v Nathoo Vasanjee (1960) EA 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.