Wakilii

Departed Asians' Property Custodian Board v Musa Balikowa (Miscellaneous Application 334 of 2023)

High Court · [2023] UGHC 238 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Deputy Registrar's order requiring security for costs in underlying civil suit
Decision
Appeal dismissed; applicant ordered to deposit security for costs within thirty days or face lapse of main suit and temporary injunction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the Deputy Registrar's order requiring the Departed Asians' Property Custodian Board to furnish security for costs of UGX 70,000,000 within thirty days. The court held that the respondent satisfied both elements for security for costs: the suit appeared frivolous and vexatious since the property had been repossessed via a ministerial certificate, and the respondent had a good defence as registered proprietor. The court rejected preliminary objections regarding procurement procedures and conflict of interest, applying Article 126(2)(e) of the Constitution to administer substantial justice without undue regard to technicalities.

Outcome

Appeal dismissed; applicant ordered to deposit security for costs within thirty days or face lapse of main suit and temporary injunction

Facts

The Departed Asians' Property Custodian Board (DAPCB) filed Civil Suit No. 50 of 2022 claiming management rights over property comprised in LRV No. 154 Folio 17, Plot 54, Main Street, Jinja. The respondent, Musa Balikowa, filed an application for security for costs, asserting that the property had been repossessed by former owners via a 1993 ministerial certificate, that the mortgage had been cleared, and that he was the registered proprietor. The Deputy Registrar ordered DAPCB to deposit UGX 70,000,000 as security for costs within 30 days. DAPCB failed to comply and the main suit was struck off. DAPCB appealed, arguing that the property was never properly repossessed, that the repossession certificate was forged, and that as a government entity it should not be required to furnish security for costs.

Issues

  1. Whether the procurement of legal services by Departed Asians' Property Custodian Board complied with the Public Procurement and Disposal of Public Assets Act 2003 and Regulations.
  2. Whether the Learned Deputy Registrar erred in ordering the applicant to pay UGX 70,000,000 as security for costs.

Orders

  • Appeal dismissed.
  • The Applicant shall deposit security for costs of UGX 70,000,000 within thirty days from the date of this order.
  • If the Applicant fails to comply, both Civil Suit No. 50 of 2022 and the temporary injunction granted in Miscellaneous Application No. 61 of 2022 shall lapse forthwith.
  • Costs of the appeal to be borne by the Applicant.

Rules and key headnotes

Civil Procedure — Security for Costs — Principles for Granting Order
An order for security for costs under Order 26 Rule 1 of the Civil Procedure Rules requires satisfaction of two fundamental elements: (a) that the applicant is incurring undue expenses defending a frivolous and vexatious suit, and (b) that the applicant has a good defence likely to succeed. Only after these elements are established may factors such as inability to pay be taken into account. Mere poverty of a plaintiff is not by itself a ground for ordering security for costs.
Civil Procedure — Security for Costs — Assessment of Merits at Interlocutory Stage
In determining an application for security for costs, the court must consider the prima facie case of both plaintiff and defendant based on the pleadings, affidavits filed in support or opposition, and any other material available at that stage. The court considers the relative strengths and weaknesses of the parties' cases and conducts a face value assessment without a detailed examination of the merits, which is reserved for the main suit.
Administrative Law — Departed Asians Property — Repossession Certificate — Ministerial Powers
Once a Minister issues a certificate authorizing repossession under the Expropriated Properties Act, neither the Minister nor the Departed Asians' Property Custodian Board has power to cancel or otherwise modify that decision. The only remedy available to any aggrieved party is to seek redress from courts of law. After issuance of a repossession certificate, DAPCB ceases to have control and management over the property.
Civil Procedure — Legal Representation — Procurement Irregularities — Effect on Pleadings
Under Section 14A of the Advocates (Amendment) Act, no pleading, contract, or other document made or action taken by an advocate on behalf of a client shall be invalidated by disqualification of the advocate for any reason, including non-compliance with procurement procedures. The right to a hearing is sacrosanct and the administration of justice requires that the substance of disputes be investigated and decided on merits; procedural lapses should not necessarily bar a litigant from pursuing their rights.
Civil Procedure — Security for Costs — Government Entities — Recovery of Costs
Where a plaintiff is a body corporate deriving its finances from the consolidated fund, the court may properly order security for costs on the ground that in the event of success the defendant may have difficulty in realizing costs from the plaintiff through execution, as funds in the consolidated fund are not subject to garnishee orders. The fact that the plaintiff is a government entity does not by itself preclude an order for security for costs where difficulties in enforcement of a costs order are demonstrated.

Legislation cited (18)

Cases cited (25)

  • Namboro & Fabiana Waburo v Henry Kaala [1975] HCB 315
  • Justice Acungwire Vs Mumtaz Kassam & 2 others
  • Attorney General & Hon Nyombi Peter v Uganda Law Society (Miscellaneous Cause No. 312 of 2013)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Olanya James v Ociti Tom and Others (Civil Appeal No. 64 of 2017)
  • Father Nanensio Begumisa and 3 Others v Eric Tiberaga (SCCA No. 17 of 2004)
  • Wanendeya v Gaboi & Another [2002] 2 EA 662
  • Prof Syed Hug v Islamic University in Kampala (Supreme Court Civil Appeal No. 47 of 1995)
  • Acungwire v Mumtaz Kassam and Others (Civil Suit No. 339 of 2019)
  • Dima Dominic Poro v Inyani & Another (Civil Appeal No. 17 of 2016)
  • Mohan Musisi Kiwanuka v Asha Chanda (SCCA No. 14 of 2002)
  • Interfreight Forwarders (U) Ltd v East Africa Development Bank (Supreme Court Civil Appeal No. 33 of 1993)
  • Bank of Uganda v Joseph Nsereko & 2 Others (Civil Application No. 7 of 2002)
  • UCB v Multi Constructors (Civil Appeal No. 29 of 1994)
  • Uganda Poultries Ltd vs Rhoda Kawuma & 2 others
  • Banco Arabe Espanol v Bank of Uganda (1992) 2 EA
  • Banco Arab Espanola v Bank of Uganda (1999) 2 EA 22
  • Hikima Kyamanywa v Sajjabi Chris (CACA No. 1 of 2006)
  • FK Zabwe v Orient Bank and Others (SCCA No. 4 of 2006)
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (SCCA No. 34 of 1995)
  • Speke Hotel 1996 Limited v Sheila Nadege (High Court Miscellaneous Application No. 456 of 2022)
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • Paul Nyamarere & Others v Okum & Another (Supreme Court Civil Application No. 18 of 2020)
  • Dr Medard Bitekyerezo v Nakawa Florence Obioha (High Court MA No. 372 of 2022)
  • John Mukasa and Litho Park Ltd vs. M/S No. 215 of 2004

Full judgment

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Departed Asians' Property Custodian Board v Musa Balikowa (Miscellaneous Application 334 of 2023) [2023] UGHC 238 (17 November 2023)
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.