[2025] UGHC 374

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT LUWERO

#### HCT-17-LD-MA-0068-2024

#### (Arising out of Civil Suit No. HCT-17-LD-CS-0053-2024)

- 1. HARRIET NATTU MUKASA - 2. MUKASA CHARLES ....................................

**VS**

- 1. SERUNJOGI ISAAC - 2. TEBUKOZA GEORGE WILLIAM - 3. KAKULU ROBERT ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE GODFREY HIMBAZA**

#### **Introduction**

- This application was brought by Chamber Summons filed in this court on $1.$ 7^th November, 2024 under Section 98 of the Civil Procedure Act Cap 282 and Order 26 rules 1, 2 & 3 of the Civil Procedure Rules S 71-1, for the following reliefs: - a) An order that each of the respondents pay security for the applicants' past costs and those yet to be incurred - b) Dismissal of Civil Suit no. HCT-17-LD-CS-0053-2024 with costs upon failure to pay security for costs in (a) above - c) Costs of this application be provided for. - The grounds of this application are contained in the affidavits in support 2. deposed by the applicants –Harriet Nattu Mukasa and Mukasa Charles and an affidavit in rejoinder deposed by Mukasa Charles, respectively.

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- 1 The respondents filed an affidavit in reply deposed by the first respondent - Serunjogi Isaac, on his behalf and on behalf of the second and third respondents. - 4 When the matter came up for hearing on 76 November,2024, the parties were directed to file their respective written submissions. Indeed they filed the submissions and this court has considered them while determining this application.

## LeEal Representation

The applicants were represented by The Law Associates Advocates, whereas the respondents were represented by Kian Associated Advocates. 5

# Background to the appllcation

- 6. In June 2024, tl:,e respondents sued the applicants and other defendants in Civil Suit No. HTC- 17-LD-CS-OO53-2O24 for declarations as to ownership of the suit land described as Bulemezi Block 835 plot 19 land at Kayonga, a declaration that the registration of the applicants on the suit land was procured by fraud, and an order of cancellation of all entries and transactions done by the defendants illegally and fraudulently on the suit land, among other orders and declarations. The respondents claimed to be beneficiaries of the estate of late Eriya Kasuju who was registered proprietor of MRV 291,Folio 1 1 which according to them was fraudulently converted into Bulemezi Block 835 plot 19 land at Kayonga and registered into the names of the 1st defendant in the suit, Livingstone Mukasa. - 7. In their Written Statement of Defence, the applicants who are husband and wife contended that they entered on the land as tenants in January 2009 having executed a Tenancy Agreement with the then owner late Joash Mayanja Nkanji in June 2016, they then purchased the suit land from the registered proprietor and had the land registered into their nannes. That the person they bought the land from Joash Mayanja Nkanji had also acquired his interest in the land by way of purchase sometime in 1999 having acquired the same from the former owner Livingstone Mukasa who had in turn bought the land from Eriya Kasujju.

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8 The applicants therefore filed this application seeking for an order for security for costs, claiming that the respondent's suit if frivolous and vexatious and that they are being put into unnecessary expenses defending a frivolous suit.

# Issuee for determination

- 9. The following issues were raised by the parties; - a) Whether the respondents' affidavit in reply was filed in time - b) Whether there are sufficient grounds for an order of security for costs against the respondents - c) What are the available remedies?

# Consideratlon by Court.

# Applicants' case and submissions

- 10. The applicants being husband and wife, deposed that they entered on the suit land comprised in Bulemezl Block 835 Plot 19 at Kayonga, as tenants by virtue of a tenancy agreement dated l"t January, 2009 between the first applicant Harriet Nattu and the then registered owner Joash Sibakyalwayo Mayanja Nkangi (deceased) and thereafter, the first applicant Harriet Nattu purchased the suit land and became the registered proprietor on 30mJune, 2016. They reiterated the history of the transactions on the land narrating that the land was originally for the late Eriyasafu Kasujju, during his lifetime, who then sold it to Livingstone Mukasa and transferred it into his names in January 1979 under instrument no. 4348O and took physical possession after the purchase. That it was Livingstone Mukasa who then sold it Joash Mayanja Nkanji before it was transferred to the applicants. The applicants further deposed that they have since both developed and occupied the suit land unchallenged and without third party claims for over 20 years until in July 2024, when the respondents asserted their baseless claims which are founded on speculations and imaginations. - I 1. It was the applicants' deposition that the said suit is baseless, frivolous and vexatious and as such, the respondents/ plaintiffs should be ordered to furnish security for costs worth Ugshs. 30,000,000/= each, owing to fact

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that they are being made to defend a baseless suit. The applicants claimed that in any case, they were Bonafide purchasers for value without notice of any previous frauds (if any).

- 12. Counsel for the applicants further averred that the respondents are actually fraudsters, seeking to claim land that they do not even occupy. Counsel argued that the respondents are actually not known in the area, that they are instead residents of Kalagala as can be shown by the letter of the area LC which was attached to the affidavit. - 13. Counsel further averred that the respondents in their plaint claimed that the land which measures 150. t hectares/370.70 acres with the developments thereon is valued at Ugshs. 1OO,OO0,OOO/ =(One Hundred Thousand Shillings, the applicants have so far incurred high legal costs and furthermore that their defence has a high prospect of success. - 14. In rejoinder, the applicants deposed that the respondents' affidavit was filed outside time without leave of court and that the certificate of title for Block 835 Plot 19 was created in 1979, about 30 years before the suit land was leased to the applicants by the late Mayanja Nkangi and the same does not show an entry for Eriya Kasuju. It was further deposed that Block 837 Plot 10 for which a search report was conducted by the respondents/ plaintiff, is not in issue in the main suit and that none of the plaintiffs/ respondents are administrators of the said estate. - 15. It was the submission of counsel that a party that fails to file an affidavit in time -within 15 days, must seek leave of court to do so and since the respondents did not seek leave of court, their affidavit in reply should be expunged. Furthermore, counsel submitted that the respondents/ plaintiffs claim registered land while the person under whom the purported claim is being brought -Eriya Kasuju, is not on the title deed as a registered proprietor.

### Respondents' case and submisslons

16. The respondents deposed that being beneliciaries of the estate of the late Eriya Kasuju, the suit land comprised in Mailo Register Volume 291 Follo

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11 measuring 37O.7O acres belonged to the late Eriaya Kasuju; and that without the late Eriya Kasuju's knowledge and consent, the suit land was moved and fraudulently registered under instrument No. 434480 as Bulemezi Block 835 Plot 19 land at Kayongo in the names of the first applicant and the subsequently trespassed on the same.

- 17. The respondents further deposed that they have a substantial amount of property within the court's jurisdiction, sufficient to satisfy any potential award of costs and that the sum of money sought by the applicants for security is unreasonably too high; and the said suit demonstrates a prima facie case and as such, the instant application should be dismissed with costs. - 18. Counsel for the respondents submitted that the affidavit in reply was filed within reasonable time and the court should uphold substantive justice over technicalities. It was further submitted by counsel that the respondents are within reach of the court's jurisdiction with their respective residences and businesses capable of facilitating any award of costs and as such, the court should disregard the issue of residence while taking into considerations for an order for security for costs. - 19. Counsel further submitted that the applicants had not attached a bill of costs demonstrating the high legal fees incurred and as such, the instant application is incompetent and should be dismissed.

# Decision of court

I will resolve issues (a) and (b) jointly as follows;

# al Whether the affidavit in reply is competent and whether there are suflicient grounds for an order of security for costs against the resPondents

20. Filing an affidavit out of time is a minor anomaly -of no serious consequence or prejudice to the adverse party. Moreover, the applicants have not demonstrated or pleaded the extent of prejudice faced as a result of the

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respondents' late filing of their affidavit in reply. Needless to say, rules of procedure are handmaids of justice and not tools designed to defeat justice.

21. I am in agreement with my learned brother Mubiru, J in Lam-Lagoro v Muni University IMISCELLANEOUS CIVIL CAUSE No. OOOT OF 20161 [2014 UGHCCD 85 (15 June 2O17f wherein he observed that;

> "An affi"dauit in reply, being euidence rather than a pleading in strlcto sensu, should be filed and serued on the aduerse partV, utithin a reasonable time be.fore the date .fixed for hearino. time sufficient to allow that aduerse partg a .fair opportunitA to respond. For that reason, an affidauit in reply filed and serued in ciranmstances uhich necessitate an adjournment to enable the aduerse partg a fair opporfitnitg to respond, should not be disregarded or struck off but rather the guilty partg ought to be penalised in cosls for the conseEtential adj ournment. "

- 22. Therefore, in light of the above authority, I hereby overrule this preliminary objection on the basis of substantive justice under Article L26 l2l (el of the Constitution of Uganda, and I will proceed to determine the application on its merits. - 23. Regarding the issue of security for costs, the import of Order 26 ru.le I & ² of the Civll Procedure Rules is that where it is deemed fit, the court may order a plaintiff in any suit to give security for the payment of all costs incurred by any defendant and failure of which the suit shall be dismissed. - 24. In the precedent of Namboro & Fabiana Waburo Vs Henry Kaala [1975] HCB 315, also cited by counsel for the applicant, the court laid down the considerations for grant of an order of security for costs and these are; - a) Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit, - b) That he or she has a good defense to the suit which is likely to succeed. - 25. I have carefully perused through all the pleadings on record, for both parties and on the face of it, the suit does not clearly demonstrate a plausible cause

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of action against the defendants / respondents nor their interest in the suit land.

- 26. In view of the considerations laid down in the case of Namboro lSupraf and without delving into the merits of the main suit, I note that the facts in issue as traversed in the plaint, to a greater extent appear to be unfounded on any evidence. Moreover, the estate and land/property in issue as comprised in Mailo Register Volume 291 Folio ll is distinct from the one in possession by the applicants -comprised in Bulemezl Block 835 Plot 19 at Kayonga and no evidence has been adduced to prove that the aforementioned properties are the same or that the property comprised in MRV 291 Folio 1 I was transferred or moved into the current property comprised in Block 835 Plot 19 under the said transfer instrument No. 434480 as averred by the respondents. - 27. More so, the applicants have been in possession of the suit land for over 20 years without any interference or third party claims until recently when the respondents sued them and other defendants. On the other hand, the respondents/ plaintiffs have not averred anlnvhere nor adduced any evidence of their possession of the suit land nor that of the late Eriya Kasuju. Furthermore, the authenticity of the Mailo title marked "A" cannot be guaranteed since the document is faint and the alleged entries that indicate the proprietorship of the late Eriya Kasuju are handwritten. - 28. In view of the foregoing, I am persuaded that the applicant is likely to be put to undue expenses by defending a suit that seems to be frivolous and vexatious. Further I find that the applicants/ defendants have a genuine defence which is likely to succeed. - 29. The upshot is that this application is allowed and costs shall abide the outcome of the main suit.

# bf What are the available remedies?

30. The applicants averred that each of the respondents be ordered to pay Ugshs. IO,OOO,OOO/ = as security for costs. Upon consideration of the

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circumstances of this case and the being mindful that the applicants/defendants did not adduce any evidence to substantiate the existence of their alleged developments and investments on the suit land, I find it appropriate that each of the respondents pay a sum of **Ugshs. 6,000,000/=** (Six Million Uganda Shillings) each being security for costs.

31. In the final result, the first, second and third respondents are hereby ordered to furnish a security of **Ugshs. 6,000,000/=**(Six Million Uganda Shillings) each, within 60 days from the date of this ruling.

#### I so order

......day of ....... $JUN@$ <br>2025 **DATED** this GODFREY HIMBAZA

**AG. JUDGE**