Damji v Damji & 2 Others (Civil Appeal 60 of 1995) [1997] UGSC 15 (11 April 1997)

Full Case Text

## THE REPUBLIC Or UGANDA

### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

ODER. J. S. C. AND KAROKCRA, J. S. C.) V (CORAM: WAMBUZI, C. J.

### CIVIL APPEAL NO.60 OF 1995

# BETWEEN

ROH INI DAMJI SI DPP. A APPELLANT AND 1. 2. RESPONDENTS FRENY DAMJI SIDPRA } VIJENDRA DAMJI SIDPRA } TARUN DAMJI SIDPRA }

{Appeal from the Ruling of the High Court of Uganda at Kampala (Mpagi-Bahiga.ine . J.) dated 15.9.1995

High Court Civil Suit No. 591 of 1990}

#### JUDGEMENT OF A. H. O. ODER, J. S. C.

This is an appeal against a dismissal of the appellant's application by the High Court, seeking a review of a court ruling ordering her to deposit security for costs in a suit in which she -'as the plaintiff.

on The brief facts of the case are that on 11.7.1990, the appellant instituted a suit against the respondents, seeking inter alia, orders to declare null and void aVl alleged will of the father of the appellant, the 2nd respondent, the 3rd respondent, and the husband of the 1st respondent. The testator, Damji Kara Sidpra, had died on March 19th, 1958 and probate of his will was granted to the 1st respondent as his executrix 24th September 1958.

The appellant is resident in India and the respondents are resident in Uganda.

as The respondents (as the defendants in the appellant's suit) applied by chamber summons under order 23 rule 1 of the Civil Procedure Rules, for orders requiring the appellant to provide security for costs in the suit. The application was heard and granted by Tsekooko, J. ( as he then was) on 8.7.1994, who ordered that the appellant should provide Shs.3m/= as security for costs within four months of the date of the order.

The appellant was apparently dissatisfied with the order for security for costs and applied by Notice of Motion for a review of that order under 0.42 r. 1 (2), 0.48 rr. 1 and 2 of the CPR and ss.83 and 101 of the Civil Procedure Act. The application for a review was unsuccessful, having been dismissed by Mpagi-Bahigeine, J. on 25.9.1995. It is against that dismissal which the appellant has now appealed. Five grounds are set out in the memorandum of appeal. They are to the effect that:

- 1. The learned Judge erred in law and in fact in failing to take into account the appellant's property in Uganda coming to her from the estate of her late brother Tarum Damji Sidpra. - 2. The learned Judge erred in finding that there is no substantial property in Uganda belonging to the appellant that could be used by the respondents to recover costs in High Court Civil Suit No. 591 of 1990 in the event of the decision in that case favouring the respondents. - 3. 591 of 1990 in order to The learned Judge failed to address herself to the merits of the High Court Civil Suit No. ascertain the likelihood of the appellant's success in the suit.

- $4.$ The learned Judge erred in fact in not addressing herself to the fact that security for costs was being used by the respondents $\quad\texttt{as}\quad$ $an$ oppressive mechanism designed to appellant frustrate the case $\verb|of|$ the against the respondents. - $5.$ The learned Judge failed to address herself on the law of enforceability of Foreign Judgements under the Foreign Judgements (Reciprocal) Act by which Uganda and India have reciprocal arrangements.

The parties to the appeal presented their arguments in writing under Rule 97 of the Rules of this Court. Consequently they did not address the court when the appeal was called for hearing on 3.2.1997.

The appellant has conducted her appeal, apparently, without This has resulted in her written the benefit of counsel. submissions consisting of a mass of materials written by her and other documents reaching a volume of 147 pages, from which what I understand to be her arguments in respect of each ground of appeal has not been an easy task.

think that grounds 1 and 2 of the appeal can be $\mathbf{r}$ conveniently dealt with together since they both relate to property which the appellant claims exists in Uganda and which could be used to satisfy the respondents costs in the suit should it be-come necessary.

The evidence on the basis of which the applicant's application for a review was refused was adduced by affidavits from both sides. The appellant filed several affidavits, one of which, filed as a supplementary affidavit, was ordered to be expunded by the learned Judge on grounds of being too prolix. The appellant has not appealed against that order. The substance of the appellant's affidavits deponed to on 21.7.1994, 29.7.1994, 26.4.1995 and 11.11.1994 is this: The 3rd respondent hereto was

one of the beneficiaries of the estate of their late father, Damji Kara Sidpra, who died in India in March 1958 leaving property in Uganda. Other beneficiaries of the estate were the appellant's mother who, by the will of the deceased, was his executrix; the second and 3rd respondents, who were resident in Uganda. The 3rd respondent died in Uganda on 14th December, 1993 intestate and, apparently without, any child or wife. The appellant, by virtue of being the deceased 3rd respondent's sister claimed some interest in her late brother's estate and, in fact, applied for letters of administration of that estate, but a caveat was lodged against the application for Letters of Administration by other persons who also claimed interests in The appellant claimed that the value of her share that estate. in here late brother's estate was around Shs.30m/=

The affidavits of the 2nd respondent, Vijendra Damji Sidora, were to the effect that their brother, Tarun Damji Sidpra, the 3rd respondent, died intestate and that his estate had not yet been administered. The 2nd respondent had obtained the Letters of Administration thereof. Ten members of the family (whom he named, including the appellant) were entitled to a share in the estate. All the ten name beneficiaries (except the appellant) have given the second respondent, Vijendra Damji Sidpra, por of attorney and the 2nd respondent were entitled to 80% of the The 2nd respondent has just obtained Letters estate. $of/pa$ Administration in July 1995 and was still in the process of calling in the estate and paying out debts. Contrary to what the appellant had said in the affidavits, not all the items of property enumerated by her belonged to, or formed part of, the estate of the deceased brother. For instance, immovable property on plots 16 and 18, George Street, and 14 Nakivubo Raod, were sold off during the life time of the deceased, and no longer formed part of the estate of the deceased; plot 107, Jinja Road belonged to Nyanza Garage Ltd; Plot 34/36 was registered in the joint names of the 2nd respondent and the deceased, and income therefrom was being used to rehabilitate the family business. The deceased was a shareholder in Damji Plantations Ltd. and

I but the process was not yet The appellant was an adult living in India permanently and was not at any material time, a dependant of the deceased brother, the 3rd respondent. In any case, as the estate of the deceased was not yet administered, the appellant could not claim to be entitled to any share of the same. Nyanza Garage Ltd j but as the businesses had got ruined after the expulsion of Asians from Uganda, income therefrom was still being used to rehabilitate the businesses complete.

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The 2nd respondent in his affidavit also said that the appellant's affidavits were full of untruths and speculations and could not form the basis of interfering with order for security for costs.

On the basis of these facts and submissions by both parties the learned Judge made the following findings which is the basis of the complaints in the five grounds of appeal:

show of a ''Turning to the position at law I am aware that no security for costs should be ordered if the respondent/defendant has money of the applicat-icWp in his hands but the principle is that the plaintiff has to show she has substantial assets within the jurisdiction, which can be reached by process, and if she wants to escape this she is bound to that this property is not ofa floating, but of fixed and permanent nature.

She It is clear by is of the action should be decided in any way seeming to prejudge that the probabilities of the not distribution. to satisfy against her. the case, it seems to me applicant/^ succeeding are all the other way. I have carefully looked at the Judge's ruling. It is not sufficient to say.she has the property here, has the to prove it. applicant is not property of any fixed nature, yet known what the Estate will be worth at the time Her share might turn out to be insufficient the costs if But without It is clear the property referred to It

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the learned Kaala access was that the the Judge took into consideration all relevant matters. He was alive to the authority of Namboro V. G. A. ( 197 5 ) *HClR).* 315 for the view that poor litigants should not be barred to court because of poverty; that the applicant was ordinarily resident outside the jurisdiction and thather claim to property within jurisdiction in the hands of the respondents was merely speculative, as it has not been vested yet.

\* i

Finally, injustice of the H I sympathise with the applicant for the way she feels about what she calls the apparent order, but the learned Judge based it on well established principles intended to protect the defendants' interests in such situations. I must therefore refuse to interfere with such order and dismiss the application with costs.

that so. Grounds one and two of the appeal are about the same point, namely, the appellant has property in this jurisdiction which would meet the respondents' costs of the suit in the event that the suit fails. The respondents, in their written submission also said

In her submission in this regard the appellant repeats all that she has been saying in the lower court.. She has maintained that the estate of her late brother (the 3rd respondent) was entirely derived from that of their late father and that she is entitled to a share of her/ late brother's estate, because he died intestate. She estimates her share to be about Shs.70m/= which, she contends, are not floating but fixed assets. This value has been increased on every occasion the appellant has had to state it. It is her contention that the assets due to her from the estate would be more than sufficient to meet the respondents' costs of the suit, should it be decided against her. She relied on the case of Ebraro V. Gassier (1884^ 28 ch.232 in support of her case in resisting the order for security for costs.

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, J

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In their reply, the respondents supported the learned Judge's refusal to review the order for security for costs. They contended that the appellants' claim of a share in her brother's estate was too speculative to be regarded as a fixed asset in her possession. They also blamed her for the administrator's (the 2nd respondent's) failure, so far, to complete the administration of their late brother's estate. This was because the administrator's time was being taken by being involved in frivolous and unwarranted legal disputes brought by the appellant, instead of devoting his time in dealing with the estate.

The general principle which applies in cases of security for costs where the plaintiff lives outside jurisdiction was stated in the early case of Ebrard V Gassier (1885) 28 ch. D. 232 by Bowen, L. J. at page 235 as follows:

"The plaintiffs being abroad were prima facie bound to give security for costs and if they desired to escape from doing so they were bound to show that they had substantial property in this country, not of a floating, but of a fixed and permanent, nature, which would be available in the event of the defendants being entitled to the costs of the action."

The same principle was cited with approval by Greer L. J. at page 469 in Kevorkian V Burney (No.2) **(**1937), 4 All E. R. 468. In Ebrard V Gassier (supra), however, the general principle was not applied because one of the members of the firm which brought the action happened to be within the jurisdiction of the court when their appeal against an order for security for costs was The brief facts in the case are that an action was heard. brought in England by a Mercantile Firm, all the members of which, were in America against a firm at Manchester. The defendant put in a defence and counter-claim, and then applied to the Judge $f \otimes d$ an order for the plaintiffs to give security for costs. The plaintiffs file an affidavit stating that they, with other persons, carried on business at Manchester and that the firm there had assets amounting to 2000 pounds. The Judge

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refused the application. On appeal the plaintiffs produced an affidavit stating that since the order one of the plaintiffs had come to Manchester for the purpose of carrying on the action. It was held by the Court of Appeal that the affidavit as to the property of the plaintiffs in England was ambiguous and was not sufficient to support the order of the court below, but it was of the plaintiffs had come to England the and also held that as one of the plaintiffs had since the order was made, although for a temporary purpose, defendants were not entitled to security for costs, therefore, the order must be affirmed.

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was was In Kevorkian V Burney (supra), the general principle also not applied, because the subject matter of the suit, statue purchased by the plaintiff from the defendant, actually available within that court's jurisdiction. The brief facts of that case were that the plaintiff who resided abroad, had purchased from the defendant for over 3000 pounds what was warranted to be an authentic Greek Statue of the Sixth Century B. C. In an action f^6 breach of warranty, wherein it was alleged that the statue was spurious, application was made that the plaintiff should give security fsiTcosts. The court had already made an order that the statue, which was deposited with a ware housing company within the jurisdiction of the court, should not be removed without the consent of the defendants. It was held by the Court of Appeal that as in the event of the plaintiff being unsuccessful in the action, the value of the statute must be more than any order for the costs that could be made against him, there ought to be no order for security for costs.

was That case was an exceptional one in that the jurisdiction" was the subject matter of alleged by the plaintiff to be more or less worth-less. As, however, the defendant would only be entitled to his costs upon the failure by the plaintiff to substantiate his allegations, which would mean that the property would then be of considerable value, the order for security's refused. It must also be noted that the property was deposited within the jurisdiction and could property within the the suit, and it worth-less.

the defendant. not be removed without an order of the court or the consent of

The In this connection, I think that reference must also be made to one of the leading early cases on the point. That is the case of In Re The Appollinairs Company's Trade-Marks (1890 ) 1 ch. D.l. There, costs a French Company appealed from an order for security for for which the respondents had applied. The appellants showed that they had a branch business as Mineral Water Merchants in England which they carried on in leased premises, where they had a stock-in-trade worth pounds 12,000, plant houses, and vans worth about pounds 1200 and a large amount of bookdebts, respondents contended that this was floating property easily removable and did not exempt the appellants from giving security. It was held that there was no reasonable doubt that the respondents, if the appeal was dismissed with costs, would find ample goods on which execution could be levied and that security ought not to be ordered.

Lord Halsbury, L . C. , said on page 3:

"There is no such hard and fast rule as has been suggested, that because a person is resident abroad he must necessarily give security for costs. His being so resident makes a prima facie case for . requiring him to give security; but it is subject to a well known and ordinary exception that if there are goods and chattels of his in this country which are sufficient to answer the possible claim of the other litigant, and which would be available to execution the courts will not order him to give security for costs."

he may be temporarily resident within the jurisdiction, a person may be ordered to give security if he is ordinarily resident outside the jurisdiction. The same principle is also stated in Halsbury's Laws of England; 3rd edition vol.9,. page 300, to the effect that where it appears the proposed plain^ff does not reside within the jurisdiction of the court a pli-ant, originating application or petition must not be entered until security for costs has been given to the satisfaction of the registrar, and even though jurisdiction,

**I .1 '•J** Moshi, Tanganyika. so P. R.) on the ground The plaintiff was proper case to In view of the provisions of 0.23, r.l of our C. P. R., which are similar to those of Kenya and Tanzania, the general principle in question has been applied within East Africa, for instance, in the case of Farrab Incorporated V Brian John Robson And Others (1957 ) E. A. 441. In that case Lewis J. relied on, inter alia, the case of Re Appollinari's Company's Trade Marks (supra), and ordered for security for costs. The defendants in a suit filed in Kenya made an application for security for costs under 0.25.rl (the equivalent of our 0.23 rd of the C. that the plaintiff was resident abroad. Theplaintiff was a corporation registered in Tangier having a place of business at The plaintiff opposed the application o^ the grounds that it owned substantial property in Tanganyika and that in view of the Judgements Extension Ordinance of Kenya and Tanganyika the defendants should be able to proceed against the plaintiff's property in Tanganyika should this be necessary. The defendants relied on a similar but unreported application for security for costs made in the Supreme Court of Kenya in 195" in similar circumstances, where security was ordered in the sum of pounds 500. it was held, inter alia, that in so far as the matter may be of discretion that was a fit and order security for costs.

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and was one of the In the instant case, the appellant is resident in India. This was part of the evidence accepted by the learned trial Judge who ordered her to give security for costs; factors on which Mpagi-Bahigeine, J. refused to review the order. Secondly there appears to be no question that the appellant does not possess any fixed property in this country, All that she is expecting to come to her as property is her alleged share in the estate of her deceased brother who died intestate, which estate is not yet administered. In the circumstances it cannot be said with any certainty that she will receive any property from that estate and if so the value of such property. Such prospects may be even worse than a floating property.

The appellant contends that though she is resident in India she happened to be in Uganda for the purposes of her suit, relying on the case of Ebrard Gassier (supra). She says that because of her presence in Uganda, she should not have been ordered to give security for costs.

I am unable to accept this argument, because, first I think $\mathbf{A}$ that the case of Ebrard V Gassier (supra) is distinguishable from the instant one in that in that case the plaintiff firm was carrying on some business in Manchester within the jurisdiction of the court. In the instant case the appellant carries on no business in uganda. Secondly, I think that the decision in that case was an exception to the general principle which the authorities I have referred to have laid down. The issue of whether security for costs should be ordered, being a discretionary matter for the court, I think that the decision in Ebrard (supra) should be confined to the circumstances of that case. It cannot, in my view, be applied to the instant case.

In the circumstances I think that grounds one and two of the appeal should fail.

Under ground three, the essence of the appellant's submission is that her suit has a good chance of success, because, the suit was based on fraud, namely that the will alleged to have been made by the father and for which probate was granted on 24.9.1458 was a forgery. Secondly her suit is not bound by section 26 of the Limitation Act, which allows an action based on fraud to be brought within 12 years after discovery of The appellant contends that as she discovered the the fraud. fraud on 18.11.1989, when she saw signed copy of the alleged will of here late father, her suit is within the period of limitation. The fraud had been concealed from her during the whole of the intervening period of 32 years until she saw a signed copy of the will.

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The respondent submitted that the appellant's criticism of the learned Judge under this ground is absolutely base-less because the leaned Judge certainly did consider the merit of the appellant's suit and she concluded that the probabilities of its success were nil.

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a success. the Court of Appeal upheld he had refused to order company with limited liability, the learned Judge, inter alia, It is settled law that one of the factors a court takes into account in considering whether or not to order security for costs against a plaintiff is the merit of his case, case of Sir Lindsay Parkinson *&* Co. 609 , which In the well known Ltd V Triplan. (1973) ICpB a decision of Mars-Jones *J* in security for costs against The Court of Appeal agreed with about the requirement that the plaintiff's case must have a reasonable possibility of The learned Judge hafi^ said at page 620:

(< In my judgement, where some reasori^ble assessment of the plaintiff's chances of success^\* 6e made at this interlocutory stage, and that must be comparatively rare, that would be relevant to the question of whether security for costs should be ordered, but not to the issue of quantum of the security to be ordered except in so far as further discount might be called for in addition to that made for the possibility that the whole of the estimated costs might not be incurred."

At page 626, Denning M. R., said "Mr. Levy helpfully suggest some of the matters which the court might take into account such as whether the company's claim is bona fide and not sham and whether the company has a reasonably good prospect of success. Again it will consider whether there's an admission by the defendants on the pleadings or elsewhere that money is due. The court might also consider whether the application for security was being used oppressively-so as to stifle a genuine calim."

instant In the instant case, in accordance with the legal requirement indicated in Sir Lindsay Parkinson (supra.) and similar authorities, the learned Judge considered the point, and came to the conclusion that the appellant's case did not have a reasonable chance of success. In my judgement she rightly did so, because the suit challenging the validity of the will was

to instituted 36 years after the grant of probate. In the circumstances the appellant has, inter alia, the obstacle of the ihe relevantij/section 2i, which limits the period of ^action claiming personal estate of a deceased person to twelve years; and section 26, which postpones limitation of period in cases.of fraud. Due to such a postponement, the period of limitation does not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The effect, of this is that the appellant has to prove fraud in order benefit from the postponement of the period of limitation.

¥l

**in** Tn the circumstances, ground three of the appeal. I think that there is no merit It must, therefore fail.

**no** as understand Similarly, I think that ground four of the appeal has The criticism of the learned Judge under she, in fact, costs was being merit and must fail. this ground is completely unjustified because considered whether the order for security used by the respondents to deny the appellant access to the court because of poverty. The learned Judge then referred to the case of Namboro V Kaala (19'5) HCB. 315 and, as I understand her ruling, answered that question in the negative.

an In Namboro1s case (supra) the plaintiffs sued the defendant (their legal counsel/ in another suit) for damages fcflr professional misconduct when he failed to appeaTon their behalf in that other civil suit as he was instructed to do so. As a result of the defendant's failure to appear for the plaintiffs in court, an exparte judgement was entered against them and they were ordered to pay damages, whereas they ha4 a good defence to the suit.

applied for an order The defendant applied to the High Court requiring the plaintiffs to furnish securitycosts under 0.23 r.l of the CPR. He did not deny having been briefed by the plaintiffs but justified his non-appearance at the hearing that

the plaintiffs has not paid him instruction fees. In support of his application for security for costs the defendant stated that the plaintiffs had shown themselves to be in the habit of not paying their debts and therefore, if their suit failed the plaintiffs would again neglect to pay his costs. The plaintiffs applied to have the application dismissed because it was brought by notice of motion instead of by chamber summons as set out in 0.23, r.3 and secondly, that the defendant had failed to show that he had a good defence to the action.

Sekandi Ag. J. (as he then was) held inter alia, that: $1.$ The main consideration to be taken into account in an application for security for costs are:

- (a) Whether the defendant is being put to undue expense by defending a frivolous and vexations suit; - (b) That he has a good defence to the suit; and - $(c)$ That he is likely to succeed. Only after these factors have been considered would factors like inability to pay come into account. - Mere poverty of a plaintiff is not by itself a ground for $2.$ ordering security for costs. If this were so, poor litigants would be deterred from enforcing their legitimate rights through the legal process. yer

In Porzelack K. G. V Porzelack (UK) 1, All ER 1074, Sir Nicolas & rowne-Wilknison, V. C. said this from page 1079:

"The next matter that I take into account is that, on the evidence before me, there is little doubt that if I order security on anything like the scale asked for, the plaintiff's action will, in fact, be stifled. It simply does not have the means to put up the money. It is always a matter to be taken into account that any plaintiff should not be driven from the judgement seat unless the justice of the case makes it imperative. I am always reluctant to allow applications for security to be used as a measure to stifle proceedings."

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In Sir Lindsay Parkinson (supra) Mars-Jones, J. said on page 617:

For that an order figure which ''The court is always mindful of the possibility that an order for security can become a weapon of oppression available to the strong to prevent the weak from getting access to the courts or the arbitrator to have their claims properly adjudicated according to law. reason ' alone, I would not be prepared to make an order for security f<p^' costs in excess of the figurewhich the mastenarrived at, namely, 1,500 pounds."

in the same referred, the same case, principle. The passage of the judgement of Denning M. R. to which I have already referred, echoes

the same not In the instant case thelearned Judge applied the principle to the case before her and concluded, rightly so in my view, that the order for security was not being used by the respondents as a measure of oppression to deny the appellant access to court to have her suit adjudicated according to law.

Under ground five, the appellant submitted that since Uganda and India are members of the Commonwealth, the Foreign Judgements (Reciprocal Enforcement) Act, Cap.48, would enable decrees in Uganda to be enforced in India. Due to such reciprocal arrangement, the respondents, if successful in the suit in this case, would enforce their decree against the appellant in India. Du^le to the same arrangement, it was contended, the Indian courts in 1959 recognised the probate which was grated in Uganda.

Kapadia V. T The appellant relied on Vallabhdas Hirji Laxmidas (1960) EA 852 for these submissions.

In their reply the respondents submitted that the appellant had not produced any evidence to show that India is one of the countries to which the Act applies. Moreover, even if the Act applies to India, there is no evidence that the applicant has property in India^which the respondents would enforce a judgement obtained in Uganda.

In that: t the case of Vallabhdas Hirji Kapadia (supra), the defendant applied for security for costs in the High Court of Kenya on the ground that the plaintiff was ordinarily resident at Zanzibar and outside the jurisdiction of the court. The plaintiff submitted that no order should be made as by s.3 of the Judgement Extension Decree Cap.23, Laws of Zanzibar, a decree obtained in any court in Kenya could be transferred to Zanzibar for execution as if the decree had been obtained in Zanzibar. It was held by&5.d^n<^s, J. that: (i) in view of the provisions of the Judgements Extension Decree of Zanzibar the evil against which the rule^otf security sought to guard largely disappeared; (ii) the defendant would be at no material disadvantage if successful, in taking steps to recover costs either in Zanzibar or in Tanganyika, where the plaintiff also had property.

XU< a applies. statutory orders, to apply Commonwealth territories. with respect, I think that\decision in the fee of Vallabhdas Hirji Kapadia (supra) is not applicable to the instant case, because, first, the Ugandan Act (Cap 48) provides for enforcement in Uganda of judgements passed in foreign countries which accord reciprocal treatment of judgements given in Uganda for the purpose of facilitating their enforcement in those countries. Under section 3 of the Act, the Minister responsible must, b^ statutory order, specify the Foreign countries to which this law Section 3 of the Act also empowers the Minister, by orders, apply the provisions of the Act to

Secondly,, no statutory orders appear to have evefCbeen made to apply the provisions of the Act to India. Moreover, there is no evidence that the appellant possesses property in India against which a judgement obtained by the respondents in Uganda would be enforced in India.

In the circumstances ground five of the appeal has no merit and must fail.

c In the result, this appeal must fail. I would accordingly dismiss it with costs to the respondents in this court and in the <pre>court below.</pre>

Dated at Mengo this ..... $\mathbb{H}^{\mathbb{H}}$ .... day of ... $\mathbb{A}$ . 1997.

A. H. O. ODER, JUSTICE OF THE SUPREME COURT.

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: WAMBUZI, CJ, ODER, JSC, AND KAROKORA, JSC)

## CIVIL APPEAL NO. 60 OF 1995

#### **BETWEEN**

APPELLANT ROHINI DAEJI SIDERA

AND

1. FRENY DAMJI SIDERA RESPONDENTS 2. VIJENDRA DAMJI SIDPRA 3. TARUN DANJI SIDPRA `

> (Appeal from the Ruling of the High Court of Uganda at Kampala (Npagi-Bahigaine, J) dated 25/9/1995

> > i n

High Court Civil Suit No. 591 of 1990)

## JUDGMENT CF RARCKCRA, J3C

I have had the advantage of reading in draft the Judgment of Oder, JGC and I do agree with it and the Orders he propagad.

I have nothing to add.

$114$ $\cdots$ day of $\frac{1}{2}$ . Dated at Mengo this 1997.

**JUSTICE OF SUPAIR**

## THS REPUBLIC- OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

### AT MENGO

(CORAM: WAMBUZIz CJ., ODER, JSC AND KAROKORA, JSC)

CIVIL APPEAL NO. 60 OF 1995

BETWEEN

ROHINI DAMJI SIDPRA APPELLANT

AND

1 FRENY DAMJI SIDPRA ]

2. VIJENDRA DAMJI SIDPRA ] RESPONDENTS

3. TARUN DAMJI SIDPRA ]

(Appeal from the Ruling of the High Court of Uganda at Kampala (Mpagi-BahigeinezJ.) dated 25.9.1995

High Court Civil Suit No. 591 of 1990)

JUDGMENT OF WAMBUZI, CJ.

I have had the benefit of reading in draft the judgment prepared by Oder JSC and I agree that this appeal must fail, mainly for two reasons.

F i r s t, this is an appeal against a dismissal of an application for review of a court ruling ordering provision of security for costs. The facts of the appeal indicate that an Order was made by the High Court for the appellant to provide Shs. 3 million as

security for costs in in the High Court. There was no appeal against that Order. a suit she brought

The application for review was made under Order 42 rule 1. That rule provides in sub-rule (1) in so far as is relevant,

- Any person considering himself aggrieved-"(1) - fa) by a decree or order from which an appeal is preferred; allowed, but from which no appeal has been

and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order".

There is no mention in the Notice of Motion or supporting affidavit of any new and important evidence discovered since the

order was made or any indication of some mistake or error apparent on the face of the record.

There is no indication either that the application for review was under rule 2 of Order 42, under which an application for review upon some ground other than the discovery of new and important matter of evidence and other matters referred to in rule 1 should be made. Unlike the application in rule 1 which is made to the court the application under rule 2 is made not to the court but to the same judge who made the order sought to be reviewed. In this case the application under rule 2 should have been made to Tsekooko J, and if this were not possible an explanation should have been given. as he then was,

An appeal against a refusal for review must be based on the laws governing review. These are not necessarily the same as those which govern an appeal against the decision sought to be reviewed, which brings me to the second point.

Tn my view most of the grounds of appeal, if not all, are concerned with or relevant to an appeal against the order for provision of security and not against a refusal of an application for review. In other words, the appellant having opted not to appeal, is infact appealing against the decision ordering security for costs. This, in my judgment would have been sufficient to defeat the appeal.

that as it may, I agree that the relevant law has been considered in the court below and that there is no merit in this appeal. As Karokora JSC also agrees with the judgment of Oder JSC, there will be an Order in the terms proposed by the learned Oder JSC.

Dated at Mengo this day of 1997.

S. W. W. WAMBUZI

*a\**

CHIEF JUSTICE