Wakilii

Muhammedi v Muhimbise (Civil Application No. 225 of 2014)

Court of Appeal · [2016] UGCA 43 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by a single Justice for an order that the respondent give further security for costs in a pending civil appeal
Decision
Application for further security for costs dismissed; each party to bear own costs

Observed later treatment

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Holding

The single Justice held that an applicant for further security for costs bears the burden of showing circumstances justifying the order, and that mere lack of knowledge of a respondent's assets does not amount to evidence of inability to pay. Success in the lower court alone is insufficient to warrant the order. The respondent's appeal was not shown to be a sham, and she demonstrated ownership of properties (including equitable interests not registered in her name) and income as a maize farmer. The applicant produced no evidence of the respondent's inability to pay costs and even conceded she could afford them. The application was dismissed, with each party bearing their own costs.

Outcome

Application for further security for costs dismissed; each party to bear own costs

Facts

The respondent had sued the applicant, Cairo Bank and George Begumisa in the High Court at Fort Portal seeking cancellation of the applicant's title and a declaration that he acquired the suit land on Lugard Road, Fort Portal fraudulently. By consent (HCMA 035/2009), the respondent agreed to deposit Shs 750,000 per month in court effective August 2010 until disposal of the suit. Judgment was delivered on 24 September 2013 in favour of the applicant. The respondent appealed and obtained an interim order staying execution. The applicant filed this application on 2 June 2014 seeking an order that the respondent furnish further security for costs of the appeal, contending the respondent had no known assets or income. The respondent deponed that she owned three pieces of land and a car (evidenced by sale agreements) and was a maize farmer. The application came up for hearing only on 3 December 2015.

Issues

  1. Whether the applicant had made out a case for an order that the respondent give further security for costs under rule 105(3) of the Court of Appeal Rules.
  2. Whether the respondent's appeal was a sham or bona fide with reasonable prospects of success.
  3. Whether the respondent lacked assets or means such that the applicant would be unable to recover costs.
  4. Whether the inordinate delay in filing and prosecuting the application was prejudicial to the respondent.

Orders

  • The order for further security for costs is declined.
  • The application is dismissed.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Security for Costs — Burden on Applicant for Further Security
An applicant for further security for costs under rule 105(3) bears the burden of satisfying the court that circumstances justifying the order exist; merely averring that existing security is inadequate or that costs below remain unpaid imposes no obligation on the court to grant the application.
Civil Procedure — Security for Costs — Proof of Respondent's Inability to Pay
Lack of knowledge on the part of the applicant about the respondent's assets cannot amount to evidence of the respondent's inability to pay costs; the applicant must provide substantial evidence on which the court can base a decision.
Civil Procedure — Security for Costs — Success Below Not Conclusive
The fact that a party succeeded in the lower court is not by itself sufficient ground for an appellate court to grant an order for further security for costs; the circumstances established in the authorities must be assessed and the court retains a wide discretion to grant or refuse.
Land & Property — Ownership — Equitable Interest Pending Registration
A person may own property despite not being the registered proprietor; an unregistered purchaser holds an equitable interest in the property which is recognised under the law, and ownership may also arise through gift inter vivos or inheritance.
Civil Procedure — Security for Costs — Distinction from Mandatory Security
Security for costs of an appeal is mandatory and fixed under rule 105(1), whereas further security for costs is granted at the discretion of the court upon application by the respondent under rule 105(3).

Legislation cited (6)

Cases cited (5)

  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Supreme Court Civil Appeal No. 34 of 1995)
  • Bank of Uganda v Joseph Nsereko & Others (Supreme Court Civil Appeal No. 7 of 2002)
  • Transroad Ltd v Bank of Uganda (Supreme Court Civil Appeal No. 43 of 1995)
  • Non-Performing Assets Recovery Trust v General Industries (U) Ltd (Court of Appeal Civil Appeal No. 25 of 1996)
  • Lalji Gangji v Nathoo Vasanjee (1960) EA 315

Full judgment

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

Muhammedi Vs Muhimbise (Civil Application No. 225 of 2014) [2016] UGCA 43 (9 March 2016)
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.