THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CORAM: HON.
JUSTICE AMOS TWINOMUJUNI, JA
(SINGLE
JUSTICE)
CIVIL APPLICATION NO.147 OF 2007
THE
REGISTERED TRUSTEES OF
MUSLIM
ASSOCIATION }…………..APPLICANT
V E R S U S
KAMPALA
CITY COUNCIL ………………………RESPONDENT
[Arising from Civil Appeal No.81 of 2005]
(Security
for costs)
R U L I N G:
This is an application by Notice of Motion under Rules
2(2), 42(2), 43 and 105(3) of the Court of Appeal Rules. The
application
seeks orders that:-
The respondent/appellant furnishes security for
costs in the High Court of Uganda within a period to be determined
by Court in
the sum of shillings 25,000,000/= (twenty five million
Uganda shillings) failing which the appeal should be dismissed with
costs.
The respondent furnishes further security for costs
of the appeal in this Court within the period to be determined by
the Court
in the sum of shs.50,000,000/= (Uganda shillings fifty
million) failing which the appeal should be dismissed with costs.
Costs of this application be provided for.
The application is supported by an affidavit sworn by
one Yusuf Shabdin stated to be the Chairman of the applicant on 17th
August 2007 in which he deponed:-
“3. That I am acquainted with the issues which
led the applicant/respondent to file Civil Suit No.999 of 2000 in the
High Court in
which the Court awarded them shs.820,900,000/= (Eight
hundred and twenty million nine hundred shillings) mesne profits plus
interest
and costs.
4. That I am aware that our advocates have been in
contact with the advocates for the respondent/appellant and that they
have jointly
held meetings with the respondent/appellant to try and
settle the issue of payment amicably but that the meetings have not
resulted
in any amicable settlement.
5. That I have also been advised by the Lawyers
whose advice I verily believe that the costs in the Court of Appeal
are likely
to be over shs.25,000,000/= which the respondent/appellant
is unlikely to pay in addition to the costs in the High Court if
security
for those costs is not deposited in this Court.
6. That I have also been advised by the same Lawyers
and I verily believe them that the respondent/appellant’s
chances of
success in the appeal is very slim and minimal.
7. That in the light of costs in the High Court
which are not yet paid by the respondent/appellant as demanded and in
the light
of the costs of this appeal, I believe that the sum of shs.
75,000,000/= (seventy five million shillings) would be just and
reasonable
in the circumstances of the case, and that a period of one
month be given for the respondent/appellant to furnish the security
for costs.
8. That it is in the interest of justice that the
respondent/appellant is ordered to furnish security both for costs in
the High
Court and in this Court failing which the
respondent/appellant’s be dismissed with costs.”
The respondent filed in reply an affidavit of Ruth
Kijjambu, the Town Clerk of the respondent in which she deponed,
among other
things, that the applicant is local authority and has the
capacity to pay whatever costs may be ordered by the court.
At the commencement of the hearing of the application,
Mr. Gerald Kakuba, learned counsel for the applicant applied to amend
the
motion in two respects:-
That the second prayer be amended to pray that the
respondent be required to furnish security for costs in the sum of
Ug. Shs.50,000,000/=
[Fifty million] for the estimated costs of the
pending appeal.
That the prayers should include a request that the
respondent be ordered to deposit Ug. Shs.810,000,000/= for security
for due
performance of the decree, the amount being the decretal
amount in HCCS No.999 of 2000 from which Civil Appeal No.81/2005
arose.
Mr. Sendege, learned counsel for the respondent did not
seek to oppose the application which I granted.
As soon as Mr. Kakuba stated his submissions, I asked
him whether he honestly believed that if this court awarded his
client Ug.
Shs.50,000,000/= in costs at the determination of the
appeal, the respondent would be unable to pay the money. Mr. Kakuba
replied
that he believed that the respondent has the capacity to pay
whereupon he agreed to abandon that prayer altogether. That left
only one prayer, the request that the respondent be ordered to
furnish shs.810,000,000/= as security for due performance of such
a
decree or order that the court may ultimately decree. Mr. Kakuba
submitted that the reason for the prayer was that the appeal
had no
chance of success at all. Mr. Sendege pointed out the fact that
though Mr. Kakuba had introduced this aspect of the Notice
of Motion
by way of an amendment, no affidavit was filed to support his
assertion in court that the case had no chances of success
or that
the respondent would be unable to pay the ultimate decree.
I agree with Mr. Sendege that if Mr. Kakuba wanted to
rely on this leg of his application (as amended), he should have
filed an
affidavit to support it. As matters stand, the only
affidavit, that of Yusuf Shabdin, which he relied on does not say
anything
about the decretal amount of Ug. Shs.810,000,000/= or the
alleged respondent’s inability to pay the money. The
respondent
is rich and powerful Local Authority possessing property
and incomes worth billions of Uganda shillings. It is in the process
of being transferred to operate under the control and direction of
the Central Government of Uganda. The argument that it is not
capable of paying a mere shs.810,000,000/= cannot be sustained. I do
not find any merit in this application which I must dismiss
with
costs to the respondent in any event.
Dated at Kampala this …30th …..day
of ……June…….2008.
Hon. Justice Amos Twinomujuni
JUSTICE OF APPEAL.