[2024] UGHCLD 129

# **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[LAND DIVISION]**

#### **MISCELLANEOUS APPLICATION NO. 3018 OF 2023**

*(ARISING FROM CIVIL SUIT NO. 0662 OF 2022)*

#### **1. JOHN BOSCO MUWONGE**

**2. HERBERT MUWONGE :::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

#### **GOLDSMITH PETER (Formerly Namakajo Patrick Senfuma**

**T/A Kampala Nursery and day Care Centre ::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 98 of the Civil Procedure Act, Order 26 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) The Respondent furnishes security for the payment of all costs incurred by the Applicants in defending Civil Suit No. 662 of 2022.

ii) The costs of this Application be provided for.

## *Background;*

- 2. That on the 21st day of June 2022 the Respondent/Plaintiff filed Civil Suit No. 662 of 2022 seeking orders interalia, a declaration that the 1st , 2nd and 3rd defendants are trespassers, a declaration that the 1st, 2nd and 3rd defendants acquired registration through fraud, an order directing the 4th defendant to cancel the certificate of title for the land comprised in LRV 4082 Folio 12 Plot 21 Rashid Khamis road, An order directing the 4th defendant to reinstate the certificate of title for land comprised in LRV 438 Folio 24 Plot 21 Rashid Khamis Road and register the plaintiff as the proprietor on the certificate of title, a permanent injunction, mesne profits, damages, interest and costs of the suit. - 3. The Applicants filed their written statement of defence and raised preliminary objections that the Respondent's suit discloses no cause of action against them, that the plaintiff has never had any legal or equitable interest in the suit property, that the certificate of purchase No. 816 of 24/5/1997 relates to different property for LRV 435 Folio 20 which is not in existence and it is different from the root title of LRV 438 Folio 24 and also stated that the Respondent's suit is barred by the law of limitation and prayed that the same be dismissed summarily.

4. The Applicants feel they are being forced to defend a frivolous and vexatious suit, the respondent does not reside within the jurisdiction of this Court, has no known property in Uganda for attachment during enforcement of orders for costs through execution proceedings hence they seek and order for the Respondent to pay/furnish security for costs.

## *Applicants' Evidence;*

- 5. The grounds of the application are contained in the affidavits in support of the application deposed by **HERBERT MUWONGE** and are briefly that: - i) That the Respondent/ Plaintiff has never owned and or acquired any interest in the suit property and I have been in possession and use of the suit property as the registered proprietor thereof for the last 12 years uninterrupted. - ii) The applicants were not privy to the procurement process of the certificate of title for LRV 4082 Folio 12 Plot 21 at Rashid Khamis Road that was issued by the commissioner land registration in favour of M/s Kampala Nursery & day care center and as such my certificate of title cannot be impeached on account of any irregularities and informalities previous to my registration. - iii) That based on my legal ownership of the suit property and the respondent/ plaintiff's failure to demonstrate any legal or equitable

interest in the suit property, I believe the 1st applicant and I have a good defence to the respondent/plaintiff's Civil Suit No. 662 of 2022.

- iv) That I have been advised by my lawyers of M/s Taremwa & Co. Advocates whose advise I verily believe to be true that the respondent/ plaintiff's suit is barred by the law of limitation having been filed on the 21st day of June 2022, more than 12 years and outside the time prescribed by law for instituting such an action against us and without pleading any disability. - v) That the 1st applicant and I are being put through an undue expense in defending a frivolous and vexatious suit since the respondent/ plaintiff has not demonstrated any legal or equitable interest in the suit property and his suit discloses no cause of action against the applicants. - vi) That I believe the 1st applicant and I are likely to suffer an injustice due to failure of realizing the fruits of a successful litigation in the event that an order for dismissal of Civil Suit No. 662 of 2022 with costs is granted by this Honourable Court since the respondent does not have any known assets to attach within the jurisdiction of this Court.

- vii) That upon conducting further investigations, I have since learnt that the respondent is a resident of the United Kingdom 74 Capel Gardens Il Ford Essex, 1G39DG with no fixed place of abode in Uganda and or any known assets within the jurisdiction of this Honorable Court which shall complicate the execution of the decree in the event judgement is entered in our favour. - viii) The applicants further state that they have been advised by their lawyers that they are being put to undue expenses of defending a frivolous and vexatious suit to which they have a good defence and that they are likely to succeed and that the respondent should be ordered to deposit security for costs in Court. - ix) That it is just and equitable that this application is granted as prayed for. - 6. The parties appeared on the 8th day of April,2024 and this Court gave directions to the respondent to file his reply by the 15th day of April 2024 and the applicants had to file their rejoinder and written submissions on 22nd April 2024. However, the respondent did not comply hence this application sails uncontested.

#### *Representation;*

- 7. The Applicants were represented by M/s Taremwa & Co. Advocates whereas there was no representation from the respondent. - 8. The Applicant filed written submissions which I have considered during the determination of this Application.

## *Issues for determination;*

- 9. The applicants in their submissions raised one issue which this court will resolve in the determination of this application. - **i) Whether the respondent should be ordered to furnish security for costs for payment of all costs incurred by the applicants in defending HCCS No. 662 of 2022?**

### *Resolution and determination of the issue;*

10. Counsel for the Applicant in his submissions relies on Order 26 rules 1 & 2 of the Civil Procedure Rules SI 71-1 and the authority of **Galukande Kiganda Micheal v Kibirigge George William & 2 ors HCMA No. 261 of 2018** which laid down the following grounds for granting an order for security for costs; Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit, that he has a good defence to the suit and that only after these factors have been considered would factors like inability to pay come into account # 11. Order 26 rule 1 of the Civil Procedure Rules provides**; The** *Court may if it deems fit order a plaintiff in any suit to give security for payment of all costs incurred by any defendant.*

12. The rationale for granting an order for security for costs was well articulated in the case of **De Bry V Fitzgerald & another (1990) 1**

**ALL ER 566**, where Lord Donaldson M. R., referred to Order 23 of the English RSC, which provides for security for costs, and at p.565 g-i, said that its rationale is that **-***" a defendant should be entitled to security if there is reason to believe that, in the event of his succeeding and being awarded costs of the action, he will have real difficulty in enforcing that order. If the difficulty would arise from the impecuniosity of the plaintiff the court will of course have to take an account of the likelihood of his succeeding in his claim, for it would be a total denial of justice that poverty should bar him from putting forward what is prima facie a good claim. If, on the other hand, the problem is not that the plaintiff is impecunious but that, by reason of the way in which he orders his affairs, including where he chooses to live and where he chooses to keep his assets, an order for costs against him is likely to be unenforceable, or*

# *enforceable only by a significant expenditure of time and money, the defendant should be entitled to security."*

- 13. An order for security for costs is granted at Court's discretion however the following ought to be put into consideration; - *i) Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit?* - *ii) That he has a good defence to the suit which is likely to succeed* **(See; Anthony Namboro & Anor v Henry Kaala (1975) HCB 315)** - **i) Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit** - 14. A frivolous case means a case that lacks legal basis or legal merit, not serious and not reasonably purposeful while a vexatious suit is one instituted maliciously and without good cause. *(See; R V Ajit Singh S/o*

#### *Vir Singh (1957) EA 822).*

15. However, at this level its crucial to note that the Court has not had the opportunity to hear the matter to determine whether the same is frivolous and or vexatious. As rightly cited by Counsel for the applicant, the authority of **G. M. Combined (U) Ltd v A. K. Detergents (U) Ltd C. A No. 34 of 1995**, that Court must consider the premafacie case of both the plaintiff and the defendant since a trail will not yet have taken place

at this stage, an assessment of the merit of the respective cases of the parties can only be based on the pleadings, on the affidavits filed in support of or in opposition to the application for security for costs and any other material available at this stage.

- 16. The Applicants, under Paragraph 4 of the affidavit in support allude to preliminary points of law that were raised in their written statement of defence to; the suit disclosing no cause of action and the same being barred by the law of limitation which points I believe have the effect of disposing of the suit. - 17. Therefore, the Respondent/plaintiff's suit might not necessarily be frivolous and vexatious but the same might be affected by the determination of the preliminary points as were raised by the applicants in their written statement of defence.

### **ii) That he has a good defence to the suit which is likely to succeed.**

18. The Applicants in the affidavit in support under paragraphs 5, 6 & 7, state that the Respondent/plaintiff's suit is premised on the certificate of purchase No. 816 of 24/05/1997 in respect of land comprised in LRV 438 Folio 20 Plot 21 Rashid Khamis Road that is distinct from LRV 438

Folio 24 plot 21 Rashid Khamis Road from which the applicants' title stems.

- 19. Further that the said land was previously registered in the names of the Registered Trustees of the St. Francis Xavier Society of tailors Kampala on the 14th day of August 1958 with a running lease of 21 years and 9 months that has since expired. - 20. That the respondent brought the suit under the pretext of being a former partner under a business name of M/s Kampala Nursery and day care centre pursuant to the certificate of purchase No. 816 of 1997 for property comprised in LRV 438 Folio 20 plot 20 Rashid Khamis Road that was non-existent, yet the root title of our property is LRV 438 Folio 24 that expired long before the cessation of the business on 19th/01/2006. - 21. It is quite clear that the respondent/ plaintiff's basis of interest is that M/s Kampala Nursery and day care centre, a business name in which he is the only surviving partner, owned the suit land pursuant to the certificate of purchase No. 816 of 1997. It is trite law that a business name not being an entity cannot own land and it is also undisputed that the same ceased business in the year 2006.

- 22. Further, the applicants state that the title from which their land stems is different from that which the respondent/plaintiff claims. This brings me a conclusion that the applicants indeed have a veritable defence to the respondent/plaintiff's suit. - 23. The Applicants also brought it to the attention of this Court that the respondent/ Plaintiff is not domiciled within the jurisdiction of this Honourable Court that he is in United Kingdom 74 Capel Gardens IlFord Essex, 1G39DG and with no known assets in Uganda. Since the Respondent did not file an affidavit in reply opposing this application, this fact remains undisputed. - 24. Where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted. **(See; Samwiri Musa v Rose Achen (1978) HCB 279 cited in Ayiisa Nassuna & Anor v Commissioner Land Registration HCMC No. 07 of 2020)** - 25. Since no evidence was adduced to rebut the above facts, its only reasonable for this Court to conclude that the Respondent is not domiciled within this Court's jurisdiction and also holds no property in Uganda for attachment during enforcement of orders for costs through execution proceedings.

26. An order of security for costs protects the defendant in some cases where, in the event of success, the defendant may have difficulty in realizing costs from the plaintiff. The mode of security should be of a type, and its amount should be sufficient, to protect the defendant's position as to costs and yet not to stifle the plaintiff's claim *(See; Speke*

### *Hotel 1996 Limited (T/A Speke Hotel Apartments) v Sheila Nadege A. K. A Don Zella HCMA No.456 of 2022)*

27. In the final result, this court finds it appropriate to grant an order of security for costs and the respondent is hereby ordered to furnish a security of Ug shs 50,000,000 (Fifty Million Shillings Only) considering the subject matter of the claim. The respondent will deposit the said sums within a period of (3) months from the date of this order.

This application therefore succeeds and costs to be in the cause.

#### **I SO ORDER.**

## **NALUZZE AISHA BATALA**

#### **JUDGE**

**27 th/05/2024**