Wakilii

Deepak K. Shah & 3 Others v Manurama Limited & 2 Others (Miscellaneous Application 361 of 2001)

High Court · [2002] UGCOMMC 31 · 2002 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for security for costs arising from underlying civil suit
Decision
Application for security for costs dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the ancient principle requiring plaintiffs resident abroad to pay security for costs must yield to the realities of East African Community integration. Where plaintiffs are residents of an East African Community Partner State, the Court should not automatically presume they must provide security for costs, given the Treaty framework for cooperation, harmonisation of laws, mutual enforcement of judgments, and free movement of persons. The discretion under Order 23 CPR must be exercised considering all circumstances including regional integration. Application for security for costs dismissed.

Outcome

Application for security for costs dismissed

Facts

Plaintiffs in the underlying civil suit are ordinarily resident in Nairobi, Kenya, outside Uganda's jurisdiction. Defendants, resident in Uganda, applied under Order 23 of the Civil Procedure Rules for an order requiring plaintiffs to pay security for costs. Defendants argued that plaintiffs' foreign residence was prima facie grounds for the order, that plaintiffs owned no property in Uganda, and that their Kenyan property (company shares) lacked permanence and undisclosed value. Plaintiffs argued the order should not oppress their action, their case had merit, and the Court should exercise discretion considering East African Community re-establishment.

Issues

  1. Whether plaintiffs ordinarily resident in Kenya should be ordered to pay security for costs under Order 23 of the Civil Procedure Rules.
  2. Whether the re-establishment of the East African Community affects the judicial approach to ordering security for costs from residents of Partner States.
  3. Whether ownership of property in Kenya by plaintiffs resident there removes the need to order security for costs.

Orders

  • Application for security for costs denied.
  • Costs of this application to be costs in the cause.

Rules and key headnotes

Civil Procedure — Security for Costs — Discretionary Power of Court
The power of the Court to order a plaintiff to pay security for costs under Order 23 of the Civil Procedure Rules is entirely a discretionary matter. There is no inflexible rule that a plaintiff resident abroad will by that reason alone be ordered to give security for costs. The Court must consider all the circumstances of the particular case.
Civil Procedure — Security for Costs — East African Community Residents
In light of the re-established East African Community and the Treaty framework providing for harmonisation of laws, mutual enforcement of judgments, free movement of persons, and regional cooperation, there can no longer be an automatic presumption requiring payment of security for costs from a plaintiff who is a resident of an East African Community Partner State. The ancient principle in Ebrard v Gassier must yield to contemporary regional realities.
Civil Procedure — Security for Costs — EAC Treaty as Relevant Circumstance
The East African Community Treaty has the force of law in each Partner State and takes precedence over national law. The Treaty provisions for unification and harmonisation of laws, standardisation of court judgments, establishment of a common bar, mutual enforcement mechanisms under identical Foreign Judgments (Reciprocal Enforcement) Acts, and free movement of persons are relevant circumstances to be considered when exercising discretion on security for costs applications involving Community residents.
Civil Procedure — Security for Costs — Poverty or Insolvency Not Grounds
The insolvency or poverty of a plaintiff is no ground for requiring security for costs, even where the plaintiff is an undischarged bankrupt. If paupers are not required to give security, then a fortiori plaintiffs whose ownership of property is unchallenged must not be required to give security.
Civil Procedure — Security for Costs — Ease of Enforcement as Relevant Factor
In exercising discretion whether to order security for costs, the Court is entitled to treat ease of enforcement as a sufficient and relevant ground for denying the order, provided other relevant factors are not ignored. Where mutual enforcement mechanisms exist between jurisdictions, this weighs against ordering security.

Legislation cited (9)

  • Civil Procedure Rules O.23 r.1
  • East African Community Treaty Article 5
  • East African Community Treaty Article 8(2)(b)
  • East African Community Treaty Article 8(5)
  • East African Community Treaty Article 44
  • East African Community Treaty Article 104
  • East African Community Treaty Article 126
  • Civil Jurisdiction and Judgments Act 1982
  • Foreign Judgments (Reciprocal Enforcement) Acts

Cases cited (15)

  • Ebrard v Gassier (1885) 28 Ch.D 232
  • Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074
  • Aeronave SPA v Westland Charters Ltd [1971] 3 All ER 531
  • Sidpra v Sidpra (Supreme Court Civil Appeal No. 60 of 1995)
  • Sir Lindsay Parrinton & Co Ltd v Triplan Ltd [1973] QB 609
  • Landi Den Hartog B v Stopps [1976] FSR 497
  • Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074
  • Vallabhdas Hirji Kapadia v Laxmidas [1960] EA 852
  • Raeburn v Andrews (1874) LR 9 QB 118
  • Re Howe Machine Co (1889) 41 Ch D 118
  • Wilson Vehicle Distribution Ltd v Colt Car Co Ltd [1984] BCLC 93
  • DSQ Property Co Ltd v Lotus Cars Ltd [1987] 1 WLR 127
  • Cowell v Taylor (1885) 31 Ch D 34
  • Cook v Whellock (1890) 24 QBD 658
  • Rhodes v Dawson (1886) 16 QBD 548

Full judgment

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Deepak K. Shah & 3 Others v Manurama Limited & 2 Others (Miscellaneous Application 361 of 2001) [2002] UGCommC 31 (5 February 2002)
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.