Wakilii

Kakooza Jonathan & Anor v Kasaala Co-perative Society Ltd [2012] UGSC 3

Supreme Court · 2012 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by a single justice of the Supreme Court for an order requiring the respondent to furnish security for past costs and further security for costs in a pending appeal.
Decision
Application for security for past costs and further security for costs dismissed; no order as to costs.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On an application under rule 101(3) of the Supreme Court Rules for security for past and further costs, the single justice held that non-payment of taxed costs is by itself insufficient; an applicant must show failure of execution, some other concrete step demonstrating inability to pay, or an admission. The application was premature, the substantial costs had not been formally demanded, and the application was filed about a year after the appeal, an unexplained delay. Lack of assets was not adequately proved and, since section 404 of the Companies Act does not apply to a registered co-operative society, was not a sufficient ground. The applicants also failed to show the respondent's appeal lacked merit. The application was dismissed.

Facts

The applicants sued the respondent for breach of an agreement to sell about 1,000 hectares of land at Nampiki, Luwero, for Shs 34 million. They paid Shs 14,300,000 and withheld the balance, alleging the respondent had sold one square mile to a third party. The trial judge found for the respondent; the Court of Appeal reversed, holding the applicants had not acquiesced and that the respondent had sold the portion fraudulently. The respondent appealed to the Supreme Court. Pending that appeal, the applicants applied for security for past costs totalling about Shs 53,418,000 from the High Court, Court of Appeal and earlier Supreme Court applications, plus further security of Shs 20,000,000, contending the respondent had no known assets, had not paid the taxed costs, and that its appeal had no likelihood of success. Demand letters in the record covered only about Shs 8,700,000 relating to the miscellaneous applications, and the only enquiry into the respondent's assets was a single letter to the Registrar of Co-operative Societies.

Issues

  1. Whether the respondent's affidavit in reply should be struck out as argumentative or rejected for containing a falsehood.
  2. Whether the applicants established grounds for an order requiring the respondent to furnish security for past costs and further security for costs under rule 101(3) of the Supreme Court Rules.

Orders

  • Application dismissed.
  • No order as to costs, the respondent being unrepresented.

Key headnotes

Civil Procedure — Security for Costs — Non-payment of Taxed Costs Insufficient
An order for security for past costs under rule 101(3) of the Supreme Court Rules requires more than mere non-payment of awarded and taxed costs; the applicant must establish failure of execution, some other concrete step showing the respondent cannot pay, or an admission by the respondent.
Civil Procedure — Security for Costs — Not a Substitute for Execution
Security for past costs under rule 101(3) of the Supreme Court Rules is not intended to be a substitute for, or an alternative to, execution; an application brought without first pursuing execution is premature.
Civil Procedure — Security for Costs — Delay in Application
Delay in filing an application for security for costs is a material consideration weighing against the applicant, and the onus lies on the applicant to show that the delay has not been prejudicial to the respondent.
Civil Procedure — Security for Costs — Prospect of Success of the Appeal
A determining factor in an application for security for costs is the prospect of success of the appeal, assessed on the pleadings and affidavits; the burden lies on the applicant to demonstrate that the respondent's appeal has no reasonable likelihood of success.
Company Law — Co-operative Societies — Inapplicability of Companies Act s.404
By virtue of section 83(1) of the Co-operative Societies Act, the provisions of the Companies Act (save those concerning winding up and liquidation) do not apply to a registered co-operative society, so section 404 of the Companies Act cannot ground an order for security for costs against such a society; lack of assets, while relevant, is not a sufficient factor.
Civil Procedure — Affidavits — Inadvertent Error and Argumentative Content
An inadvertent typographical error in an affidavit, corrected by a supplementary affidavit, is not a ground for rejecting it, and an affidavit will not be struck out as argumentative where the impugned paragraphs are statements of belief or of fact within the deponent's knowledge that the opposing party could have controverted.

Legislation cited (8)

  • Supreme Court Rules r.101(3)
  • Supreme Court Rules r.101(1)
  • Supreme Court Rules r.42
  • Supreme Court Rules r.109
  • Companies Act s.404
  • Companies Act s.58
  • Companies Act s.66
  • Co-operative Societies Act s.83(1)

Cases cited (11)

  • Goodman Agencies Ltd v Hasa Agencies (SC Civil Application No. 01 of 2011)
  • G M Combined (U) Ltd v A. K. Detergents (U) Ltd (Civil Appeal No. 34 of 1995)
  • Noble Builders (U) Ltd & Raghbir Singh Saudhu v Jabal Singh Saudhu (Civil Appeal No. 15 of 2002)
  • Noormohamed Abdulla v Ranchhodbhai J. Patel and Another [1962] EA 447
  • Lalji Gangji v Nathoo Vassanjee [1960] EA 315
  • Bank of Uganda v Joseph Nsereko & Others (SC Civil Application No. 01 of 2011)
  • Patel v American Express International Banking Corporation (Civil Appeal No. 9 of 1998)
  • Uganda Commercial Bank v Multi-Constructors Ltd (Civil Appeal No. 29 of 1994)
  • Lindsay Parkinson Ltd - Vs- Tiplan Ltd
  • Namboro v Kaala [1975] HCB 315
  • Premchand v Quarry Services Ltd [1971] EA 172
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.