Wakilii

Godfrey Kirumira Kalule V J.F.S Development (Misc. Application No. 1878 of 2018)

High Court · [2019] UGHCLD 41 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for security for costs arising from underlying civil suit for recovery of land based on fraud
Decision
Application for security for costs dismissed with costs to the respondent

Observed later treatment

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Holding

The High Court dismissed an application for security for costs under Order 26 rule 1 of the Civil Procedure Rules. The applicant failed to prove that the underlying suit was frivolous or vexatious, or that he had a good defence likely to succeed. The court held that the respondent's claim disclosing triable issues relating to fraudulent land transfer during pending litigation was not frivolous. The court further found that the applicant's assertion of respondent's inability to pay costs, based solely on ignorance of property and shareholder locations, constituted a fishing expedition and was unsubstantiated.

Outcome

Application for security for costs dismissed with costs to the respondent

Facts

The respondent company J.S.F Development owned land at Kyadondo Block 244 Plot 3644. Between 2010 and 2016, the respondent instituted multiple suits against the applicant concerning possession and ownership of the suit land. During the pendency of one such suit, the suit land was transferred from the respondent's name into the applicant's name. The transfer instrument indicated the transferor as Damba Wilson/J.S.F Development, a person unknown to the respondent. The applicant claimed to have purchased the land from the respondent through its authorised agents including the respondent's attorney Mr. John Kityo. The respondent disputed this and instituted the main suit (Civil Suit No. 593 of 2016) seeking cancellation of the applicant's certificate of title on grounds of fraud. The applicant then brought this interlocutory application seeking security for costs, alleging the respondent had no property in Uganda, its directors and shareholders were not resident in Uganda, and it would be unable to pay costs if the applicant succeeded in defending the main suit.

Issues

  1. Whether the application meets the conditions for the grant of an order for security for costs against the Respondent?
  2. Whether the parties are entitled to the reliefs sought?

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Security for Costs — Test for Grant — Frivolous and Vexatious Suit
An order for security for costs under Order 26 rule 1 of the Civil Procedure Rules requires the applicant to prove two main considerations: (a) that the applicant is being put to undue expenses by defending a frivolous and vexatious suit, and (b) that the applicant has a good defence to the suit which is likely to succeed. Only after these elements are satisfied should factors such as the plaintiff's inability to pay costs be considered.
Security for Costs — Assessment of Prima Facie Case — Standard of Proof
In determining an application for security for costs at the interlocutory stage, the court must consider the prima facie case of both the plaintiff and the defendant. Since trial has not yet taken place, an assessment of the merits of the respective cases can only be based on the pleadings, the affidavits filed in support of or in opposition to the application, and any other material available at that stage.
Security for Costs — Inability to Pay — Burden of Proof
A claim that the plaintiff will be unable to pay costs must be supported by evidence. Lack of knowledge on the part of the applicant regarding the plaintiff company's property, directors, or shareholders cannot amount to evidence of inability to pay costs. Such a claim, unsupported by proof of insolvency proceedings or an unsatisfied decree, constitutes a fishing expedition.
Security for Costs — Frivolous Suit — Definition and Application
A suit will not be considered frivolous and vexatious where the plaintiff's pleadings and evidence disclose bona fide triable issues. A claim founded on allegations of fraudulent land transfer during the pendency of litigation, coupled with discrepancies regarding the identity of the transferor, raises triable questions and is not frivolous.

Legislation cited (3)

Cases cited (10)

  • Namboro & Fabiana Waburo v Henry Kaala [1975] HCB 315
  • G.M. Combined (U) Ltd v A.K. Detergents (U) Ltd (Supreme Court Civil Appeal No. 34 of 1995)
  • R v Ajit Singh s/o Vir Singh [1957] EA 822
  • United Builders & Contractors Ltd v Harris International Ltd (High Court Civil Appeal No. 29 of 2016)
  • GM Combined (U) Ltd v AK Detergents (U) Ltd [1992] 2 EA 94
  • Samwiri Musa v Rose Achen [1978] HCB 297
  • Noble Builders (U) Ltd & Anor v Jabal Singh Sandu (Supreme Court Civil Application No. 15 of 2012)
  • Bank of Uganda v Joseph Nsereko & 2 Others (Supreme Court Civil Application No. 7 of 2002)
  • Thomas Makumbi v Josephine Katumba (High Court Miscellaneous Application No. 316 of 2014)
  • Anthony Namboro & Anor v Henry Kaala [1975] HCB 315

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Godfrey_Kirumira_Kalule_V_J.F.S_Development_(Misc._Application_No._1878_of_2018)_[2019]_UGHCLD_41_(8_July_2019)
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.