BAKAMPA BRIAN BARYAGUMA
MOBILE: +256753124713 /
+256772748300;
EMAIL: bakampasenior@gmail.com;
WEB ADDRESS: www.huntedthinker.blogspot.com;
Kampala, Uganda.
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Proposed Amendments to the Civil Procedure Rules, Court of Appeal
Rules and Supreme Court Rules
By
Bakampa Brian Baryaguma
[Dip. Law
(First Class) – LDC; Cert. PELD – NaLI-K; Cert. Oil & Gas – Mak; LLB (Hons)
– Mak]
To
The Chairperson of the Rules Committee cum Chief Justice
Kampala, Uganda.
22 March
2024.
____________________________________________________________
Friday, 22nd March, 2024.
To:
The Chairperson of the
Rules Committee cum Chief Justice,
Courts of Judicature,
High Court Building,
Plot 2, The Square,
P.O. Box 7085, Kampala, Uganda.
Your Lordship,
Re: Proposed
Amendments to the Civil Procedure Rules, Court of Appeal Rules and Supreme Court
Rules
1.
Introduction
Thank you for your good service to Uganda. Congratulations are in
order for the Judiciary constructing the appellate courts twin tower buildings
that house the Supreme Court and Court of Appeal. The twin towers are incredibly
beautiful. This is a truly phenomenal achievement. Please take my hearty appreciation
for garnering this milestone. I look forward to the buildings’ commissioning.
 |
| The letter was duly served on the Chief Justice who is also the Chairperson of the Rules Committee, as evidenced by the stamp of acknowledgment of receipt on the top right corner of this image. |
2.
Matters of Serious Concern in Rules of Civil Procedure
I wish to bring to your Lordship’s attention, for consideration by
the Rules Committee, with the view of amendment, matters of serious concern in our
rules of civil procedure namely, The Civil Procedure Rules, Statutory
Instrument 71–1 (hereinafter “the Civil Procedure Rules”), The Judicature (Court of Appeal Rules) Directions, Statutory Instrument
13–10
(hereinafter “the Court of Appeal Rules”) and The Judicature (Supreme Court Rules) Directions, Statutory
Instrument 13–11 (hereinafter “the Supreme Court Rules”).
My proposals concern the time for filing affidavits in reply under
the
Civil Procedure Rules and mandatory furnishing of security for costs under
the
Civil Procedure Rules, the Court of Appeal Rules and the
Supreme Court Rules.
Since rule-making is the province of the Rules Committee, I
propose that for the reasons given below, the Committee be pleased to amend appropriately
the provisions identified hereunder.
A.
Concerning Time for Filing Affidavits in Reply under the Civil
Procedure Rules
For a long time, the law and practice was that a defendant
(including a respondent) must file his, her or its defence (including an
affidavit in reply) within fifteen (15) days from the date of issue of summons.
This position was recognized in many authorities notably the ruling of Justice
Christopher Madrama in the case of Stop And See [U] Ltd v. Tropical Africa Bank
Ltd, Miscellaneous Application No. 333 of 2010 (hereinafter “Stop v.
Tropical Bank”) in which the learned judge exhaustively considered timelines
for filing of interlocutory applications, which timelines, nevertheless, applied
to all other applications where affidavits in reply are required. Under that
legal regime, an affidavit in reply was considered to be a pleading like any
other (such as a plaint and a written statement of defence) and treated as such.
The penalty for a non-compliant affidavit was striking it out of the court
record with costs.
However, the legal position in Stop v. Tropical Bank has
since been rescinded and replaced with that in the case of Dr. Lam–Lagoro James v. Muni University,
Miscellaneous Cause No. 0007 of 2016 (hereinafter “Lam-Lagoro v. Muni
University”) wherein Justice Stephen Mubiru rejected the practice of subjecting
affidavits in reply to strict timelines, opting instead for the measure of a reasonable time before the date fixed for
hearing. In the learned Judge’s words, at page 11 of the ruling:
An affidavit in reply, being evidence rather than a pleading in stricto
sensu, should be filed and served on the adverse party, within a reasonable
time before the date fixed for hearing, time sufficient to allow that adverse
party a fair opportunity to respond.
As can be seen, under this legal regime, an affidavit in reply is not
considered to be a pleading like any other (such as a plaint and a written
statement of defence) and is therefore not treated as such. Further, the
penalty for a non-compliant affidavit is penalizing the guilty party with an
order to pay costs for the inconvenience caused. At page 11 of his ruling, Mubiru
J put the position thus:
For that reason, an affidavit in reply filed and served in
circumstances which necessitate an adjournment to enable the adverse party a
fair opportunity to respond, should not be disregarded or struck off but rather
the guilty party ought to be penalised in costs for the consequential
adjournment.
But Lord Chairperson, to my mind, the departure from the Stop
v. Tropical Bank legal regime (if I may put it that way) to that of Lam-Lagoro
v. Muni University is not wholly desirable. Whereas there may have
existed good reasons in Lam-Lagoro v. Muni University for
rejecting imposition of strict timelines for filing and serving the affidavit
in reply, I do not think it was wise to wholly rescind the fixed timelines
stipulated in Stop v. Tropical Bank because, as will be seen in the ensuing
discussion, that wholesome rescission will result in unjust and arguably absurd
results in other situations. To appreciate this, probably one must compare and
contrast the situation in Lam-Lagoro v. Muni University with other
possible (and in fact real) situations elsewhere, as a case study of sorts.
The
Situation in Lam-Lagoro v. Muni
University
In Lam-Lagoro v. Muni University, it was explained and found that
it was not possible for the respondent University to file an affidavit in reply
within the then stipulated time of 15 days because some of the minutes they
needed to annex to the affidavit in reply required approval at subsequent
meetings of the University Council, which council meets at least once in three
months as stipulated under section 42 (1)
of The Universities and Other Tertiary
Institutions Act. So, in that case, the respondent filed its defence quite
very late simply because it was impossible for it to file an affidavit in reply
sooner than was done. Personally I think this is understandable and acceptable
in the circumstances.
Although, as a matter of course, before accepting and enshrining this
into some kind of rule of legal procedure, the Rules Committee would have to
first study and analyse how similar situations were handled in the past since
Muni University was not the first university to be sued and therefore
necessitating a university council to sit and approve of minutes to be used in the
relevant litigation proceedings. It should be found out how other universities
were handling the situation.
Other Possible (and in
Fact Real) Situations Elsewhere
Now let us juxtapose the situation in Lam-Lagoro v. Muni University
with other possible situations elsewhere in order to test the desirability of
the wholesome rescission of the legal regime in Stop v. Tropical Bank.
Lord Chairperson, to properly buttress my critique of the
Lam-Lagoro v. Muni University legal regime, I am going to use my real
life, personal litigation experiences to demonstrate that unjust and arguably
absurd results will ensue in the currently prevailing legal regime. For this
purpose, let me refer to two of my ongoing cases in the High Court, Civil Division,
at Kampala. One is Bakampa Brian
Baryaguma v. Bbaaka Property Consultants (U) Ltd, Miscellaneous Cause No. HCT-00-CV-MC-0033-2023 (hereinafter “Bakampa v. Bbaaka Ltd”), which is still pending
before Justice Nambayo Esta and the other is Bakampa Brian Baryaguma v. Law Development Centre, Miscellaneous
Application No. HCT-00-CV-MA-0076-2023
(hereinafter “Bakampa v. LDC”), which is pending before Justice Boniface
Wamala.
1.
The Situation in Bakampa v.
Bbaaka Ltd.
The respondent, Bbaaka Property Consultants (U) Ltd, was served with the notice of motion summoning it to file a
defence. Bbaaka Ltd indeed filed its defence
– the affidavit in reply – 53 days (one month and twenty two days) after
service of court process on it, without explaining this inordinate delay.
Bbaaka Ltd is a private company, with an ordinary board of directors, devoid of
operational intricacies and challenges akin to those of a university council.
No wonder it did not allege any plausible hardships that prevented it from
filing its defence within the traditionally prescribed time of 15 days.
2.
The Situation in Bakampa v.
LDC.
The respondent, LDC, was served with court summons and pleadings
that accuse its retained advocates of committing illegalities, fraud and
engaging in professional misconduct during the prosecution of the cause from
which that application ultimately arose. Any responses to or explanations for
those accusations are well known and could be easily given by LDC’s retained
advocates at relatively short notice. Yet they filed their defence (i.e. the
affidavit in reply) six (6) months after service of court process on them! They
invoked the rule and leeway created in Lam-Lagoro v. Muni University to
explain away this inordinate delay. One wonders whether they also needed a
council or committee of some kind to sit and approve of their explanation, if
any, for engaging in the identified illegalities, fraud and professional
misconduct. Definitely they did not and no such explanation was given.
Observations from the Foregoing
Scenarios
Lord Chairperson, those are real situations, in live cases. The
scenarios referred to are not exhaustive, but they suffice to illustrate my
point. So, why should such parties not be held to strict compliance with the 15
days duration for filing an affidavit in reply as stipulated in Stop
v. Tropical Bank? Speaking for myself, I do not see any good reason why
they should not be so held to comply.
It is precisely for this reason that I hereby propose that the
Rules Committee amends the Civil Procedure Rules to enshrine
in the Rules the previous legal position in Stop v. Tropical Bank that a
defendant (including a respondent) must file his, her or its defence (including
an affidavit in reply) within fifteen (15) days from the date of issue and
service of summons.
Exceptional circumstances like that in Lam-Lagoro v. Muni University
can, if deemed proper, be recognized as exceptions to the general rule. The
amendment should strictly consider an affidavit in reply to be a pleading like
any other (such as a plaint and a written statement of defence) and treat it as
such.
Provisional
Arrangements
In the meantime, as we wait for the Rules Committee to do the
needful, and in order to urgently fill this lacuna or vacuum and avoid/cure
possible injustices and absurdities resulting from its existence, I humbly
suggest and recommend that the superior courts of record do utilize the medium
of case law to fill the gap. After all, it is the same medium that has been used
to create the current state of affairs. In Bakamapa
v. LDC, I suggested this to Wamala J. I hope he takes my suggestion/recommendation.
Even Nambayo J can do the same in Bakampa
v. Bbaaka Ltd, much as I did not present this idea to her at trial.
I so move and propose, your Lordship.
B.
Concerning Mandatory Furnishing
of Security for Costs under the Court of Appeal Rules and the Supreme Court
Rules
Mandatory furnishing
of security for costs in civil appeals is stipulated by rule 9 (1) of order 43 of the Civil Procedure
Rules (the exception thereto), rule 105 (1) of the Court of Appeal Rules and rule 101 (1)
of the Supreme Court Rules.
Order 43, rule 9 (1) of the Civil Procedure
Rules provides as follows–
ORDER XLIII—APPEALS TO THE HIGH COURT.
9. High Court may
require appellant to furnish security for costs.
(1) The High Court may in its discretion, at any time after an appeal is
lodged, demand from the appellant security for the costs of the appeal; except that
the court shall demand the security in all cases in which the appellant is residing
out of Uganda and is not possessed of any sufficient immovable property within
Uganda other than the property, if any, to which the appeal relates. (Bold emphasis is in the
original; underlined emphasis is added.)
Rule 105 (1) of the Court of Appeal Rules provides as follows–
105. Security for costs
in civil appeals.
(1) Subject to rule 113
of these Rules, there shall be lodged in court on the institution of a civil
appeal, as security for costs of the appeal, the sum of 200,000 shillings. (Emphasis
is in the original.)
Rule 101 (1) of the Supreme Court Rules
provides as follows–
101. Security for costs
in civil appeals.
(1) Subject to rule 109
of these Rules, there shall be lodged in court on the institution of a civil
appeal as security for the costs of the appeal the sum of 400,000 shillings.
(Emphasis is in the original.)
Lord Chairperson,
much as there is an attempt to ameliorate the potentially harsh and disastrous effects
of rules 105 (1) and 101 (1) under the designated rules (113 and 109) to which
they are respectively subject, by exempting an appellant from lodging security
for costs where court is satisfied on the application of the appellant that he
or she lacks the means to
deposit
the security for costs and that the appeal has a reasonable possibility of
success, this attempt, I contend, is nonetheless not enough because it exposes
the affected litigant to likely higher expenses in form of prosecuting the
application for waiver of security for costs and even leads to loss of valuable
time in the process. So in all respects, rules 113 and 109 are more illusory
than they are useful in this regard.
On the matter of mandatory lodgment of security for costs, my view
is that it is not useful to lodge security for them in some cases, like where illegalities
are involved such that costs are awarded illegally and are therefore by law
irrecoverable, or where in fact there are no costs to be secured in the first
place. In such cases, security lodged becomes utterly meaningless and really
somewhat oppressive. Perhaps to see this, it is imperative to first appreciate
the basics.
James A. Ballentine, Ballentine’s Law Dictionary (3rd
edition), at 1155, defines security for costs as, “A
bond, undertaking, or deposit required of a plaintiff to secure the payment of
costs in the action or the unpaid costs of a prior action.” This definition to
my mind succinctly captures the
primary intention of the lawmaker in enacting the general
rule in rule 9 (1) of order 43 of the
Civil Procedure Rules, rule
105 (1) of the Court of Appeal Rules and rule 101 (1) of the Supreme Court Rules i.e. to
secure the payment of costs of a prior action.
The
imposing question then is: what is there
to secure if the costs of a prior action are found to have been awarded
illegally and are therefore unlawful and unrecoverable, or that actually the
person whose costs are being secured did not incur any costs in the prior
action? The short and direct
answer is: nothing.
For
this reason, I propose that the Rules Committee be pleased to amend rule 9 (1) of order 43, of the Civil Procedure Rules,
rule 105 (1) of the Court of Appeal Rules
and rule 101 (1) of the
Supreme Court Rules to cure the senselessness and utter absurdity inherent in them.
I am fortified in this proposal again by possible, real life situations (some of
them being my own experiences while involved in litigation in the courts) that
render furnishing security for costs unnecessary, as explored below.
Possible Situations that
Render Furnishing Security for Costs Unnecessary
Lord
Chairperson, there are ample justifications for and indeed appropriate
situations necessitating amending the impugned rules to move them away from their
currently mandatory character to a directory one. Those justifications and situations
include, but are by no means limited to, the following.
1.
Commission
of Offences.
Take,
for instance, the aforesaid situation in Bakampa v. LDC at
page 6, lines 118-130, where LDC’s retained advocates
are accused of committing illegalities, fraud and engaging in professional
misconduct during the prosecution of the cause from which that application
ultimately arose. The identified illegalities, fraud and professional
misconduct amount to offences, by virtue of which LDC cannot recover costs, as
enacted under section 69 of The Advocates Act, Cap. 267, as amended
2002 (hereinafter “the 2002 Advocates Act”). It states as follows–
69. No costs recoverable for acts
constituting an offence
No
costs shall be recoverable in any suit, proceeding or matter by any person in
respect of anything done, the doing of which constitutes an offence under this
Act, whether or not any prosecution has been instituted in respect of the
offence. (Emphasis is in the original.)
The cause from which that application arose, Bakampa Brian Baryaguma v. Law Development Centre, Miscellaneous Cause
No. 428 of 2019, was dismissed with costs. Upon appealing to the Court of
Appeal, I paid security for costs of Uganda shillings two hundred thousand (Ugx
200,000), as required. But those costs are irrecoverable under the 2002 Advocates Act, due to the
offences committed by LDC’s retained advocates. So why secure them, then?
2.
Non-appearance
of Awardee when Summoned by Court.
Where
the awardee did not participate in court proceedings, such as in another case of mine vide Bakampa Brian Baryaguma v. Attorney General, Miscellaneous Cause No.
129 of 2021 (hereinafter “Bakampa v. AG”), which, as can be seen from
its registration number, has been long-pending before Justice Nambayo Esta. In
that case, the respondent, the Attorney General (AG), was served with court
summons to file a defence but did not file one. So court directed that I
proceed ex parte. This means that the AG did not incur any expenses in the case
since he did not participate in its prosecution.
Now,
one of the options available to the learned trial Judge, Nambayo J, in her
ruling, is dismissing the cause. Then I would also have the option of appealing
to the Court of Appeal against her ruling, and, of course, be required to pay
security for costs – none existing costs since the envisaged beneficiary (the
AG) did not participate in the case when summoned to do so! Lord Chairperson,
this is ironic; and quite frankly, also senseless and absurd. Why secure none
existent costs of an absentee party?
3.
High
Possibility of Awardee Losing on Appeal.
Where
an awardee of costs has no likelihood of success on appeal and is therefore
putting the appellant to undue expense or great cost by prosecuting a civil
appeal in which that awardee has no reasonable prospects of success, thereby
raising a prima facie case of the difficulty regarding the success of the
awardee, it is improper and unreasonable to subject the appellant to furnishing
security for costs that will most likely be unavailable eventually.
For
instance, take my appeal to the Court of Appeal (Bakampa Brian Baryaguma v. Law Development Centre, Civil Appeal No.
COA-00-CV-CA-0186-2022) that is related with Bakampa v. LDC referred to above, at page 6, lines 118-130 and page 11,
lines 236-241: the illegalities committed by LDC and its retained
advocates raise serious doubt about their success in the appeal. Moreover, in
the cause from which the appeal arose, apart from unleashing points of law, LDC
did not raise any plausible defences to my accusations against it and so it
follows that even on appeal, it does not have a good defence and is therefore
not likely to succeed; and insofar as it refuses to settle the suit out of
court with me, LDC is simply engaging in frivolous and vexatious litigation,
considering the prima facie case of parties as revealed in pleadings.
So
why should a well-grounded appellant be doomed to secure costs of a party
standing on shaky and questionable ground?
4.
Avoiding
Ridiculous Outcomes.
It
is ridiculous to furnish security for costs of a party that, for instance,
engaged in committing offences in the prosecution of a case, did not legally
appear to defend itself when summoned to do so, and has no likelihood of
success on appeal. Traditionally the law shuns upon ridiculous outcomes. It
follows therefore that the same law should not be allowed to be ridiculous
itself. Appellants should not be condemned to secure costs of parties whose
case results are inevitably ridiculous.
5.
Novel
Points of Law Raised on Appeal.
Where
the appellant’s appeal raises novel points of law not adjudged on by the lower
court that have the effect of casting doubt upon the correctness of an award of
costs, then security for costs of the appeal ought not to be furnished.
For
example, grounds 1 and 2 of my memorandum of appeal in my appeal to the Court
of Appeal (referred to above, at page 11, lines 236-241)
state that:
1.
The learned
trial Judge erred in law and fact when he granted prayers and an adjournment
for filing an affidavit in reply to the notice of motion out of time, moved by
a non-practitioner.
2.
The learned
trial Judge erred in law and fact in accepting Respondent’s submissions that
were signed by an unqualified practitioner.
These are new matters which were not considered in
the cause in the High Court from which the appeal arose and which, in light of section 69 of the 2002 Advocates Act, vitiate LDC’s award of costs. This
vitiation renders untenable furnishing security for costs of my appeal,
ostensibly to secure the costs of a party who does not deserve them and cannot
recover them legally, anyway.
6.
If
No Prejudice will be Suffered by Those for Whose Benefit the Requirements were
Introduced.
As
stated at pages 9-10, lines 197-204 above, the primary intention of requiring
payment of security for costs is to secure the payment of costs of a prior
action. But if, for instance, it emerges that the costs of a prior action are
found to have been awarded illegally and are therefore unlawful and
unrecoverable, or that actually the person whose costs are being secured did
not incur any costs in the prior action, then no prejudice will be suffered by
the intended beneficiary of the requirement for payment of security for costs
if the security paid to secure those unlawful or non-existent costs is not
lodged in court. In such situations, surely an appellant should not be required
to furnish security for costs.
Observations from the
Foregoing Scenarios
Lord
Chairperson, the foregoing are clear situations where security for costs need
not (and should not) be furnished by an appellant. The list is by no means
exhaustive as there could be other situations. So why
should appellants in such cases pay security for costs in their appeals?
Speaking for myself, I do not see any good reason why they should be required
to furnish security for costs.
My
proposals are geared towards making the rules on payment of security for costs
workable and encourage, rather than constrain, the culture of constitutionalism
because those are special circumstances of a substantial and compelling
character that militate against mandatory furnishing of security for costs,
such that requiring security to be furnished in light of those circumstances
would, to my mind, be tantamount to deprivation of the right to property, which
is constitutionally prohibited by article
26 of the Constitution.
There
is need to balance the interests and rights of parties in litigation to ensure
that neither’s interests and rights are achieved at the expense or to the
prejudice of the other. It is precisely for this
reason that I hereby propose that the Rules Committee appropriately amends the
relevant procedural rules which impose mandatory furnishing of security for
costs namely, rule 9 (1) of order 43, rule 9 (1) of the
Civil Procedure Rules (the exception to), rule 105 (1) of the Court of Appeal Rules and rule 101 (1) of the Supreme Court Rules.
Provisional
Arrangements
In the meantime, as we wait for the Rules Committee to do the
needful, and in order to urgently fill this lacuna or vacuum and avoid/cure
possible injustices and absurdities resulting from the
current position of the law, I humbly suggest and
recommend that the medium of case law be used to ameliorate the
situation, by the superior courts of record construing and interpreting those
provisions to be merely directory, but not mandatory.
I so move and propose, your Lordship.
Potential
Unconstitutionality of the Impugned Rules
Before taking leave of this matter, Lord Chairperson, I would like
to point out, as food for thought for the Rules Committee, that the impugned
rules are potentially unconstitutional, which fortifies the case for their
amendment by the Committee and provisionally their interpretation and treatment
by the courts as being merely directory, but not mandatory.
In their absolute sense – in that they render payment of security
for costs obligatory no matter what – the rules raise the question whether their
requirements are in fact not unconstitutional, because they pose difficulties,
contradictions and anomalies prejudicial to the enjoyment of constitutional
rights and freedoms guaranteed by the Constitution, such as effectively
stifling the constitutional right to go to the courts in which they apply
rather than encouraging the enjoyment of that right, yet the Constitution gives
the people of Uganda the right to have unimpeded access to those courts to seek
appellate justice. Impeded access to the courts must be expressly and clearly
stipulated by law, which the impugned rules do not pretend to be or do. In their
absolute terms that impose restrictions to the right of access to the courts of
their operation, which the Constitution itself does not provide for, the
impugned rules are subsidiary legislation that are hampering people’s access to
the courts and have the effect of amending the Constitution, thereby seeking to
add to and or vary the same and therefore to amend it (Constitution) without
doing so through its amendment provisions, thus making the impugned rules
clearly against the Constitution and not in accordance with its spirit.
The question that arises is whether the requirements can be
sustained in light of the fact that mere statutory instruments could be applied
to deny access to constitutionally guaranteed rights and freedoms. The
Constitutional Court faced a similar issue in Uganda Association of Women Lawyers, Dora Byamukama, Jaqueline Asiimwe
Mwesige, Peter Ddungu Matovu, Joe Oloka Onyango and Phillip Karugaba v.
Attorney General, Constitutional Petition No. 2 of 2003 and in its
adjudication declared unconstitutional such legislations, mainly because of the
hardship they cause in their application to human rights and freedoms cases,
yet it is understood beyond question that: the door to the courts should remain
wide open for the people of Uganda to have access to them at all times for
redress in the event of any violation; the rules are subsidiary legislation
which cannot prevail over the Constitution; rather, the Constitution prevails
over them.
Lord Chairperson, I have examined the practical implications of rules 9 (1), 105 (1) and 101 (1) in their
absolutist sense. Their role is to restrict access to the courts of their
operation, acting as an impediment, a roadblock and a nuisance to those seeking
access to appellate justice in those courts. They represent a continuing breach
of the Constitution by legislation. Undoubtedly, the impugned rules exceed what
the makers of the Constitution had intended and therefore have no legal effect
in their absolute terms as they are inconsistent with and contravene the
Constitution. There is urgent need to make the impugned rules workable and
encourage, rather than constrain, the culture of constitutionalism by
mitigating their harsh effects so as to encourage rather than discourage
citizens’ access to the courts of their operation.
What is required is pretty obvious: the Rules Committee amending,
and provisionally, the superior courts of record interpreting the impugned rules
as being directory, but not mandatory. The Committee and the courts being the
protectors of the rights and freedoms of the citizens must give such legislation
and interpretation that will promote rather than destroy the rights. It is high
time that the impugned rules are brought into conformity with constitutional
standards. So much for this matter.
3.
Conclusion/Way Forward
Lord Chairperson, in conclusion, I suggest the following as the
way forward:
A.
Concerning the Time for
Filing Affidavits in Reply under the Civil Procedure Rules.
I propose
that the Rules Committee amends the Civil Procedure Rules to enshrine therein
the previous legal that a defendant (including a respondent) files his, her or its defence (including an affidavit in
reply) within fifteen (15) days
from the date of issue and service of summons. The amendment should strictly consider an affidavit in reply to be a
pleading like any other (such as a plaint and a written statement of defence)
and treat it as such.
B.
Concerning Mandatory Furnishing
of Security for Costs under the Civil Procedure Rules, the Court of Appeal
Rules and the Supreme Court Rules.
One, I propose that rule 9
(1) of order 43 of the
Civil Procedure Rules be amended by deleting the exception thereto, so
as to retain the general rule only. This deletion rids the rule of the
undesirable mandatory element embedded in it and retains only the desirable directory
element.
Two, I propose that rule
105 (1) of the Court of Appeal Rules and rule 101 (1) of the Supreme Court Rules be amended by
modeling them along the general rule in rule
9 (1) of order 43 of the
Civil Procedure Rules that is reproduced above, at page 8, lines 161-170.
But in order not to procrastinate reading, let me reproduce it below, so far as
is relevant.
ORDER XLIII—APPEALS TO THE HIGH COURT.
9. High Court may
require appellant to furnish security for costs.
(1) The High Court may
in its discretion, at any time after an appeal is lodged, demand from the
appellant security for the costs of the appeal; … (Emphasis is
in the original.)
This changes the
character of the impugned rules from being mandatory to being directory, by making
furnishing security of costs a matter of court discretion. This implies that
courts cannot require security without hearing both the interested and affected
parties and then coming up with a balanced decision on the merits that caters
for the interests and rights of all parties concerned.
I so move, your
Lordship.
For God and my country,
[signed]
Bakampa Brian Baryaguma
Lawyer
Contacts: +256753124713/+256772748300; and bakampasenior@gmail.com.
