Kwesiga and 2 Others v Ssenyonga and 2 Others (Civil Application 43 of 2021) [2021] UGSC 72 (15 November 2021)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 43 OF 2021** (ARISING FROM CIVIL APPEAL NO. 17 OF 2020)

Between

Kwesiga William

2. Samuel Bihagaro ......................................

3. Benon Kaliga

#### And

- 1. Ssennyonga Haruna - 2. Nyombi Hussein (Administrator of the estate of the late Suleiman Mbaziira

. Respondents

3. Nambaziira Jane (Administrator of the estate of the late Mary Nassaka

## BEFORE MWONDHA, JSC (SINGLE JUSTICE)

#### **RULING OF COURT**

This Application was brought under Rule 2 (2) and Rule 101

- (3) of the Supreme Court Rules. It was seeking for orders that: - (a) The respondents give further security for costs of the appeal (SCCA No. 17 of 2020) - (b) Costs in Court of Appeal Civil Appeal No.35 of 2017 and HCCS No.37 of 2012 - (c) Costs of this Application

The application was supported by an affidavit deponed by the 1st applicant on his own behalf and on behalf of the other two applicants attached on the Notice of Motion. The grounds briefly were:

- (1) That the respondents no longer have any interest in the suit property the subject matter of the appeal, they having fraudulently purported to transfer the same to a third party M/s Pillars Trading Co. Ltd during the pendency of and in contempt of the proceedings in CACA Application No. 35 of 2017. That as such, the respondents have no valid interest in the outcome of the appeal now pending in this Court and therefore the probability of success is not there. - (2) That the applicants have been and continue to be put to great expense in contesting the aforesaid moot appeal in this court and other fresh cases now pending at the High Court in Masaka in respect of the suit property all of which have arisen as a result of the respondents' aforesaid fraudulent dealings inter alia. - (3) The respondents have no known assets from which the costs of the appeal and past costs in CACA No. 35 of 2017 and Masaka HCCS No. 37 of 2012 may be realized by the applicants. Further that the 2nd and 3rd respondents are acting in representative capacity as administrators of the estate merely shielding themselves from personal liability for the costs yet nothing is known of the status and property if any of the estates administered by them. - (4) The statutory security for costs deposited by the respondents at the time of filing SCCA No.17 of 2020 is too inadequate to meet the past costs and the costs likely to be awarded in the appeal.

That because of the circumstances above, they are entitled to be granted the orders sought for.

The respondents filed a reply in the affidavit deponed by Ssennyonga Haruna of C/o Jambo & Co. Advocates. He deponed as hereunder among others:

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- (1) That he was duly authorized in writing by the $2^{nd}$ and $3^{rd}$ respondents to depone to the matters of fact on their behalf (Copy of authorization was attached and marked as Annexture "A") - (2) That paragraphs 12, 13, 14, 15 & 16 were denied by the respondents and contend that there was no order of stay in existence by the time the suit property was sold to M/s Pillars Trading Co. Ltd and as such, there was nothing barring them from realizing the fruits of litigation at that particular time. - (3) Under paragraph 17 of the affidavit in support, the respondents deponed that they were under no obligation at all to disclose to the applicants the status of registration of the suit land and the land registry was open at all material times to enable the applicants to make a search and establish the status if they so wished.

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- (4) That in reply to paragraphs 18 & 19 of the affidavit in support, it's not true that the transfer of the suit land rendered the present appeal moot since the applicants are still in physical occupation of the suit land on strength of having been the successful parties in the Court of Appeal and further the present appeal raises various points of law which are of great importance to the public. - (5) That in reply to paragraphs 20,21,22,23,24,25,26 & 27, no application for execution for costs has ever been filed against the respondents and they failed to pay the same. And as such, the applicants are using the present application as an alternative to execution proceedings. - (6) That the applicants have not yet taxed their bill of costs for the High Court in Masaka and the said sums as indicated

in the instant application cannot be relied upon to ascertain the amounts of costs due in High Court.

- (7) That in reply to paragraphs 28 & 29 of the affidavit in support, it is not true that it's the 1st respondent who has appeared in the case above, but all the respondents appeared several times in the High Court at Masaka as its indicated at pages 173, 175, 180, 189, 192, 197 and 203 of the record of appeal filed in this Court on 23rd September 2020 and as such the affidavit contains blatant lies. - (8) That the respondents are Ugandan citizens with fixed and known places of abode in Uganda and own various moveable and immoveable assets in Uganda. - (a) The 1st respondent is a retired civil servant and served as secretary to various embassies in Uganda and owns various pieces of land in Wakiso.

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- (b) The 2nd respondent is s senior citizen involved in various projects in Masaka and Entebbe and has a fixed place of abode in Entebbe - (c) The $3rd$ respondent is a retired employee of the defunct coffee Marketing Board with a fixed place of abode at Makindye, Kampala. - (9) That the respondents are not fictitious persons as alleged in paragraph 29 of the affidavit in support and to the contrary, the respondents are the plaintiffs in Civil Suit No. 240 of 2015 Masaka District Growers Co. Union Ltd & 41 others Vs the Attorney General where they have obtained a certificate of order against government for payment of UGX. $172,154,648,400/$ = (One hundred seventy-two billion one hundred fifty-four million six hundred forty-eight thousand four hundred shillings) out of which the respondents are entitled to payment of Ug, shs. $3,676,488,000/$ = (three

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billion six hundred seventy-six thousand four hundred eighty-eight thousand shillings) which payment has been authorized to be paid in the next financial year (A Copy of the certificate of order against government and valuation report were attached and marked as annextures "B" and "C" respectively.

- (10) That the fact that the said compensation due and ascertained as payable by the Government of Uganda directly stems from compensation of Ranch 40 Sembabule District wherein they lost 930 hectares to squatters as Ranch 40B and retained 259 hectares that is Ranch 40 A which is the suit land now being claimed by the applicants in the present appeal (See copy of Valuation report at page 66 already attached) - (11) That it therefore cannot be alleged that the respondents cannot be able to pay costs in the instant case with the above amount of $3,696,488,000/$ = as already stated above. - (12) He deponed that the application for increase of security of costs is misconceived and intended to delay the hearing of the pending appeal.

### **Background of the Appeal**

The brief facts of the background of this appeal were laid down by counsel for the respondents at the opening of the submissions. They were not contested or disputed.

The respondents were ranchers and owned and occupied Ranch No. 40 in Sembabule. They were granted a lease by the Uganda Land Commission measuring 1228.8 hectares/square miles. In 1990s, the Government restructured all ranches and took away the respondent's land (4 square miles) and agreed to compensate them for the land taken and the residue of 1 square mile (259 hectares) was retained by the respondents (suit land, Ranch 40A). The respondents applied for title for the residue but later discovered

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that a parallel title for the same 259 hectares had been processed and subsequently transferred to the applicants contrary to the Ranch Restructuring Scheme. The respondents successfully sued the applicants but in the Court of Appeal, the applicants were successful hence the pending appeal in this Court where this Application arises.

#### **Representation:**

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Mr. Murangira of Murangira Advocates represented the applicants. Mr. Joseph Matsiko of Kampala Associated Advocates represented the respondents.

# Applicants' submissions

Mr. Murangira, Counsel for the applicants submitted that the law applicable is as provided in Rule 101(3) of this Court's Rules which provides for further security for costs. That the principles which guide Court in determination of such nature of applications have been stated in various cases of this Court as follows: -

- 1. That the burden lies on the applicant to show cause why Court should grant such orders. - 2. That the factors to be taken into account include the absence of known assets and address of the respondents within the jurisdiction of Court, insolvency or inability to pay costs by the respondent, the general financial standing or wellness of the incurred the bv substantial costs unpaid appellant. respondent, the bonafides of the appellants' claim, the prospects of success of appeal, the conduct of the respondent or any other relevant circumstances. See Good man Agencies Ltd Vs Hasa Agencies (K) Ltd Civil Ref. No. 01 of 2011, and the most recent case KCB Bank (U) Ltd Vs Formula Feeds Ltd & others Civil Application No. 38 of 2020 (SC) where the Court reviewed a number of authorities on the matter. Some of them were Kakooza Jonathan & another Vs Kasaala Cooperative Society Ltd Civil ApplicationNo. 13 of **2011 (SC)** among others.

Counsel identified the following issues for determination:

- (1) Whether the applicant has established a case for the grant of the orders sought. - $(2)$ Remedies

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In submission on the first ground, counsel argued that the appeal by the appellant is moot and therefore no likelihood of success, having been rendered fraudulent by the contemptuous conduct of the respondents.

Then on the 2nd ground, that the applicants continue to be put to great expense in contesting a moot appeal and other fresh matters that have arisen as a result of the respondents as above stated and are now pending in Masaka High Court. Counsel relied on averments in paragraphs 10-19 & 24 of the affidavit in support of the application read together with Annextures D1, D2, E1, E2, F1, F2, G, H, J1, J2 and J3. That these annextures have not been denied by the respondents. Counsel submitted further that the respondents transferred their interest in the suit property which was the subject matter of the appeal. It was during the pendency of the aforesaid appeal which was fraudulent and contemptuous among others. Counsel submitted that the respondents having done so, they extinguished themselves effectively between them and the applicants not only in CACA No.35 of 2017 but also in the appeal pending now.

On the above grounds of incurring heavy costs in challenging the moot appeal, they are incurring costs heavily in challenging fresh litigation at Masaka High Court brought by the 3rd party transfer of suit property to M/s Pillars Trading Co. Ltd. That the applicants have so far spent 30,000,000 as instruction fees to counsel in the moot appeal and a further $10,000,000/$ = alias as instruction fees to counsel.

On ground 3, counsel submitted that the respondents have no known assets from which the costs of the appeal and past costs in CACA No. 35 of 2017 and Masaka HCCS No. 37 of 2012 may be realized. That the $2^{nd}$ and $3^{rd}$ respondents are acting in

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representative capacity. Counsel noted that the above averments were not seriously controverted by the respondents' affidavit because they didn't demonstrate the assets they have within the jurisdiction of Court. He further argued that there was no documentary evidence to show that they had assets. That the respondents have not proved or shown that they have known addresses or assets within the jurisdiction of Court from which the applicants may recover costs and past costs.

On the 4th ground which challenges the insufficiency of statutory security for costs of shs. $400,000/$ = which was deposited by the respondent on filing the appeal; Counsel argued that its inadequate as per the averments in paragraph 27 of the affidavit in support of the application. The amount claimed by the applicant is shs. 159,713,000/=. The expected in total is $230,291,100/$ = the amount of costs in CACA No. 35 of 2017, Shs 20,578,100, the amount to be awarded in costs in the appeal pending is $50,000,000/=$ .

Counsel submitted that the above makes it clear that the statutory security deposit cannot be adequate. Counsel prayed that the court orders payment of shs. $200,000,000/$ = as additional security for costs to be deposited in court within time to be set by court. Counsel prayed further that if the respondent fails to pay within that time, the appeal pending should be dismissed with costs.

# **Respondent's submissions**

Counsel submitted that there was no mootness of the appeal because the respondents transferred their interest to a third party. Counsel submitted that the appeal raises various questions of fact and law in relation to the interest of the parties in the suit land. The appeal challenges the awards of general damages, interest and costs awarded against the current respondents. Counsel submitted that an appeal is moot if it's merely hypothetical and of no legal consequence. Counsel cited the case of Joseph Borowski Vs AG of Canada (1989) 1SCR 342 cited with approval in Human Rights Network for Journalists & anor Vs Uganda Communications Commission & 6 others HCMC No.219 of 2013 which held; "an appeal is moot if the decision will not have the effect of resolving some controversy affecting or practically affecting the parties (see page 3 of the defendant's authorities)

Counsel submitted that the applicants in collusion with Sembabule District Land Board fraudulently acquired an interest in Ranch 40A which had been allocated/ retained to the respondents and thus not available for leasing. The subsequent sale of the respondent's interest did not render the question of the fraudulent acquisition moot. It does not render the issue of damages and costs moot. As a result, the applicants and respondents have separate titles to the same land (suit land).

Besides, the respondents sold their interest legally to a third party. The law under Rule 6 (2) of both the Court of Appeal and Supreme Court Rules, the Constitutional Court emphasized that filing an appeal does not amount to stay of execution. (See Kyambogo University Vs Prof. Isaiah Ndiege Court of Appeal Application No. 341 of 2013) UGCC 13 (Page 41 of authorities)

The applicants failed to get an order for stay of execution so there was no legal bar to prevent the respondents to sell. The respondents were under no legal obligation to disclose to the applicants the status of the registration. While both parties have parallel titles, the applicants are in physical possession of the subject matter (suit land) on the strength of having been successful at the Court of Appeal. Counsel submitted that there is a live dispute which centers on the fraudulent acquisition of title by the applicants over land which had been retained by the respondents so there is no mootness of appeal.

On the likelihood of success, counsel relied on the case of GM Combined (U) Ltd Vs AK Detergents (U) Ltd SCCA No.34/95, Oder JSC (as he then was) held; "a major consideration is the likelihood of success of the plaintiff's case and the defendant differently, whether the plaintiff has a reasonably good prospect of success or whether the plaintiff's claim is bonafide and not a sham...

Counsel argued that the applicants have not proved that the respondent's appeal has no likelihood of success in their affidavits or submissions to show that their defence stands any chance of success. He submitted that the respondents (appellants) have filed in their submissions which demonstrate a strong case, up to date the applicants (respondents in the appeal) have not shown that they have good defences to the appeal or that the appeal is weak to justify granting additional security for costs. On the contrary, the appellants/ respondents filed 6 grounds of appeal which raise important questions of law and fact which require serious consideration. The respondents/ applicants were ranchers who lost their land and retained only 259 hectares but when the respondents were processing their title to the ranch, the applicants fraudulently and illegally got registered with a separate title. It has to be determined whether the applicants are the lawful owners of the 259 hectares as the same could be re-allocated by Sembabule District Land Board among others.

On the 3rd ground of the respondents having no known assets and address, counsel submitted that in the case of Bank of Uganda Vs Nsereko & others Supreme Court Civil Application No.07 of 2002, Mulenga JSC held that "Clearly lack of knowledge on part of the applicant cannot amount to evidence of the respondent's inability. The applicant ought to have provided more substantial evidence on which court can base a decision." While in **Kakooza V**. Jonathan & another Vs Kasaala Co-operative Society Ltd (Civil Application No. 13 of 2011 (2012) UGSC 3, it was held: "Even if I was to accept...that the respondent does not have assets to satisfy the costs, this would not be enough ground to order security.... Therefore, while lack of assets is an important factor to consider, it is not a sufficient factor especially in relation to persons that do not fall under Section 44 of the Companies Act.

Counsel submitted that the burden is on the applicant to prove that the respondents have no assets. Mulenga JSC in **Bank of Uganda** Vs Nsereko (Supra) emphasized that; "Even if I were to hold that failure to deny the averment amounted to admitting, the result. would be that the applicant did not know their assets ... among others ... to the view that the applicant filed the application as a challenge to the respondents to disclose their assets whereabouts and the value of their assets if any. With due respect the relief of security for costs cannot have been intended for that purpose."

Counsel submitted that the applicants have failed to prove their case. On the contrary, the respondents have proved that they have known places of abode and have various properties in Uganda as per their averment in the affidavit in reply 3rd and 11 paragraphs.

They gave evidence in the affidavit that they are not fictitious as alleged by the applicants as provided in paragraphs 12 and 13 of the affidavit in reply- The evidence was not challenged by any rejoinder.

Counsel argued that the KCB Bank v. Formula Seeds (Supra) relied on by the applicant was distinguishable by the following $-$ (1, it concerned default in mortgages, (2) it concerned foreign nationals who needed to prove that they had some properties within the jurisdiction of the Court. (3) it concerned a Company under the Companies Act that specifically provides for security for costs. Also the case of Goodman Agencies v. Hasa Agencies Ltd (Supra) is distinguishable. The decision of this Court was that, it was not based on the question of assets and the respondent had no known address in Uganda and on the respondents offer of $700,000,000/$ = in Court for security for costs, do not apply in this Application. Both those cases considered situations involving non-nationals (foreigners). The case of **Kakooza Jonathan & Another v. Kasaala** Coop Society (Supra) that was the approach taken. That instant case is about Nationals of Uganda who have fixed places of abode and own several properties as the evidence in their affidavit show. So the applicants cannot allege that the respondents cannot pay costs in the event that they are not successful.

Counsel submitted that there was unreasonable delay in filing this application and should be dismissed. He relied on Kakooza Jonathan & Anor v. Kasaala Coop Society Ltd (Supra) where it was held, lateness in filing application for security may be a factor to consider against the applicant. The Court dismissed an application which was filed a year after the appeal was. Counsel submitted that the application was filed on 6th October 2021 and the appeal was filed on 23rd Sept 2020. Almost a year had passed.

Counsel argued that the applicants are using the application to stifle the appeal and cause unreasonable delay for expeditious The respondents being desirous of disposal of the same. expeditiously disposing of the appeal have filed written submissions and the applicants (respondents) are using the application for security of cost oppressively so as to try to stifle a genuine claim. See Lindsey Parkinson Ltd v. Tiplan Ltd (see page 102 of the respondent's authority.

Counsel concluded that the applicants have not proved the circumstances to justify the grant of the order for additional security for costs. The appellants (respondents) appeal is not moot and has high chances of success. It should be dismissed with costs.

## **Consideration of Application**

This application was brought under rule 2(2) and 101(3) of the rules of this Court.

Rule $2(2)$ provides;

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Nothing in these rules shall be taken to limit or otherwise affect the inherent power of the Court and the Court of Appeal to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such Court and that power shall extent to the setting aside of judgments which have been proved null and void after they have been passed and shall be exercised to prevent abuse of the process of any Court caused by delay.

Rule 101(3) provides: -

Subject to rule 19 of the rules there shall be lodged in Court on the institution of Civil Appeal as security for the costs of the appeal the sum of $400,000$ /= shillings

(3) The Court may at any time if the Court thinks fit direct that further costs for security be given for payment of past costs relating to the matters in question in the appeal.

I have carefully perused the Notice of Motion and the affidavit in support deponed by the 1st Applicant on his own behalf and on behalf of the other 2 applicants, the affidavit in reply deponed by the 1st respondent on behalf of the other 2 respondents, the submissions of both Counsel and the authorities attached thereon. There are four grounds as laid down in the Notice of Motion as follows:-

(1) It was stated that the respondents' fraudulently purported to transfer the suit properly the subject matter of the appeal, to the $3rd$ party among others. That this was during the pendency of and in contempt of the proceedings in CACA No.35 of 2017. That as such the respondents have no valid interest in the outcome of the appeal. That there was no possibility of success.

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- (2) That the applicants have been and continue to be put to great expenses in contesting the afore said moot appeal in this Court and other fresh cases now pending at the Masaka High Court in respect of the suit property among others. - (3) That the respondents have no known assets from which the costs of the appeal and past costs in CACA 35 of 2017 and Masaka HCCS No 37 of 2012 may be realised by the applicants. That there is nothing known of their status as they are acting in representative Capacity avoiding personal liability. - (4) That the statutory security for cost deposited by the respondents at the time of filing SCCA No 17 of 2020 is too inadequate to meet the past costs and the costs likely to be awarded in the appeal.

The principles which guide this nature of applications have long been settled. Section 101 of the Evidence Act Laws of Uganda provides;

"Whosoever desires any Court to give judgment as to any legal right or liability dependant on existence of facts, which he or she assets must prove that those facts exist."

Counsel for the applicant rightly laid down these principles which guide Court in determination of such applications like this one and I have reproduced them above so I will not re write them again. The most important one is that "the burden lies on the applicant to show cause why Court should grant such orders.

So the issues are: - (a) whether the applicantshad established a case to justify the grant of the orders sought.

(b) What remedies are available to him.

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In his submission, Counsel Murangira for the applicants relied on KCB Bank (U) v. Formula Feeds Ltd and three others (supra). He also relied on Kakooza Jonathan and another Vs Kasaala Cooperative Society Ltd (supra) among others.

Counsel submitted among others that the appeal is moot and therefore had no likelihood of success having been rendered fraudulent by the contemptuous conduct of the respondents fraudulently transferring the subject of the suit property to a third party Ms Pillars Trading Co Ltd and therefore had no valid interest in the outcome of the appeal now pending in Court.

That ground raises a question as to what moot means. Black's Law Dictionary 8th Edition defines the word moot as "(1) open to argument, (2) having no practical significance, hypothetical or academic ..." while in the Oxford Languages Dictionary on line it can be equated to a mock judicial proceedings set up to examine a hypothetical case as an academic exercise.

It is very clear from the evidence produced by way of affidavit by the applicants, that, they are alleging fraudulent transfer of the subject matter, and that's why, the respondents appealed and deposited the statutory security for costs.

At the same time the respondents in the evidence as per affidavit in reply, categorically also allege fraud and collusion by the applicants with the Sembabule District Land Board which resulted into transfer of the land allocated to them which was not available for leasing, and was leased to the applicants who are still in occupation of the same by virtue of their being successful in the Court of Appeal.

It is clear to me that that evidence cannot fall in the definition of moot as defined above. The averments in regard to the above show that there are questions of fact and law in relation to the interest of the parties in the suit land and or appeal.

Besides, the appeal challenges the award of general damages and costs against the respondents. So the appeal cannot be moot. I accept Counsel for the respondents' submissions and the authority he relied on which held, "An appeal is moot when the decision will not have the effect of resolving some controversy affecting or particularly affecting the parties (See Joseph Borowsk v. Att G. of Canada (1989) ISCR 342 (this was cited with approval in Uganda Human Rights Network for Journalists & Anor v. Uganda Communications Commission & 6 Others. HCMC No 219 pf **2013**). This was a persuasive authority but it sets a good principle in resolving the issue of moot or not moot.

There are definitely live issues which need to be considered and resolved by this Court sitting as the Supreme Court of Uganda. As a result of the alleged fraud on both sides, each party has a parallel Certificate of title. This can only be investigated and resolved by this Court. The appellants and respondents should be given the opportunity to be heard and to have the issues resolved. I therefore find that there is no basis to term the appeal "moot" and so this ground fails.

On the issue of possibility of success of the appeal, my view is that it's too early to determine since, the underlying fact is that the

appeal raises important questions of fact and law, which need to be determined. So delving in issues as to whether, the appeal has a possibility of success is only academic with no value at this stage as I will be getting into the merits and demerits of the appeal.

On the ground or factor that the respondents did not have known assets from which the costs of the appeal and past costs in CACA No 35 of 2017 and Masaka HCCS No 39 of 2012 may be realised; Counsel for the applicants merely stated that the averments were not seriously controverted by the respondent's affidavit because they did not demonstrate the assets. Connected with this is that respondents didn't have known the addresses within the jurisdiction of this Court.

The averments the applicants relied on were so superficial in that they amounted to lack of evidence to support the claim of lack of assets by the respondents. Indeed, in the case of Jonathan Kakooza & Anor v. Kasaala Coop Society (supra), It was held among others, that "... while lack of assets is an important factor to consider, it is not a sufficient factor especially in relation to persons that do not fall under S.404 of the Companies Act." I hasten to add that on the contrary, the respondents proved in the affidavit evidence that they had property in known places in Uganda i.e. the jurisdiction of the Court as deponed in paragraph 3 and 11 thereof. They gave particulars of their addresses and residence which proved that they are genuine. (See paragraph 12 and 13 of the affidavit in reply. They demonstrated or indicated where their assets & properties were in Masaka, Luwero & Mukono and their particulars

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The case of KCB Bank v. Formula Seeds (Supra) relied on heavily by Counsel for the applicants was distinguishable and was not applicable. I accept Counsel for the respondents' submissions that, that case concerned a mortgage, it related to foreign nationals who needed to prove that they had some properties within the jurisdiction of Court, and it concerned a Company which is governed by the Companies Act and specifically provides for security for costs.

Also the case of Goodman Agencies v. Hasa Agencies Ltd (supra) was distinguishable. The decision of the Court in that case was not based on the question of assets and respondents had no known address in Uganda hence the respondents were in Court on security for costs of 700,000,000/=. So definitely both those two cases could not be applicable to the facts of this Application.

On the ground of insufficiency of statutory security of costs deposited by the respondents of $400,000/$ = on filing of the application; Counsel for the applicants pointed out what was deponed in paragraph 27 of the affidavit in support of the application. The amounts claimed being Shs. 159,713,000 and submitted that the expected amount was Shs. $230,291,000/$ = This was on the assumption that the applicants won the appeal and would be awarded $50,000,000/=$ .

The above submissions and averment were based on assumptions and full of speculation. It had no evidential value whatsoever. The applicant surely ought to have provided substantial evidence on which a Court can base a decision. This ground fails.

The applicants have the burden to prove that the respondents have no assets. Mulenga JSC in Bank of Uganda Vs Nsereko & others (**Supra**) had this to say, "Even if I were to hold that failure to deny the averment amounted to admitting it, the result would be that the applicants did not know their assets ... the applicant filed the application as a challenge to the respondent to disclose their assets whereabouts and the value of their assets if any. With due respect, the relief of security for costs cannot have been intended for that purpose."

Counsel for the respondents submitted correctly in my view, that the applicants are using the application to stifle the expeditious disposal of the appeal by delaying to file their reply to the written submissions and yet the respondents/appellants have already done so. Having determined/resolved all the grounds in negative, I find that the applicants have failed to show cause why the orders sought should be granted.

In the result I find no merit in the application and it is dismissed with costs in the cause.

Dated at Kampala this ... $15^{\frac{11}{12}}$ day... However, 2021.

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Menereup $\mathbf{M}$

## JUSTICE OF THE SUPREME COURT